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Madhya Pradesh High Court · body

2013 DIGILAW 102 (MP)

Ramsaran v. State Of M. P.

2013-01-21

G.D.SAXENA, S.K.GANGELE

body2013
JUDGMENT : G. D. SAXENA, J. The aforesaid three appeals arise out of the impugned judgment and order of conviction and sentence dated 21st September 2004 rendered in Sessions Trial No. 348/2000 by the Sixth Additional Sessions Judge (Fast Track), Bhind (M. P.) where under present appellants/accused have been held guilty for kidnapping Geetaram Bohare, Vijaykumar Bohare, Rambabu Bohare, and Haridat Bohare, which is an offence punishable under section 364-A of Indian Penal Code and sentencing each one of them to suffer imprisonment for life. 2. Since the judgment and order challenged in these criminal appeals is one, they are herewith taken up together for hearing and decided by this one common judgment. 3. The facts, in short, just for deciding the case are that on 29th October 1999 at about 8.00 p.m., in night Geetaram, Vijayram, Rambabu, Haridat, Shivkumar Raisingh and Jandel Singh were going towards Bazaria for selling milk on their cycles. When they reached near culvert of canal of Aroli, they found there eight miscreants having armed with guns. The miscreants by putting guns on their chest asked their names and castes one by one. Thereafter, they released three persons Jandel Singh, Raisingh and Shivkumar on the spot while compelled rest four of the persons, namely Geetaram, Vijaykumar, Rambabu and Haridat to accompany them to forest. After realisation of the ransom amount from Gajadhar, Goverdhan and Shyambabu, the dacoits (accused-appellants) released the abductees Geetaram, Vijaykumar, Rambabu and Haridat, after lapse of considerable period. On 29th October 1999 at about 10 p.m., in night, Jardan Singh (PW-5), the abductee but released on the spot informed the incident to SHO of the Police Station Ater and on his report, Dehati Nalish (Ex.P/1) was written against gang of Punjab Singh dacoit. The investigation was set in motion. After release of the abductees, their case diary statements were recorded. The statements of material witnesses including the witnesses who delivered the ransom amount to gang of dacoits were recorded. After investigation, charge sheet against arrested accused, namely, Pappu alias Ram Singh, Pappu alias Narendra Singh and Dev Sigh was filed. Rest of the accused, i.e., Punjab Singh @ Punjab, Ram Sharan, Pramod Singh, Amar Singh, Virendera Singh, Naresh Singh and Lachchi Singh were declared absconded. After arrest of Pramod Singh, Ram Sharan Singh, Punjab Singh and Naresh Singh, supplementary charge sheet was filed before the criminal Court having jurisdiction. Rest of the accused, i.e., Punjab Singh @ Punjab, Ram Sharan, Pramod Singh, Amar Singh, Virendera Singh, Naresh Singh and Lachchi Singh were declared absconded. After arrest of Pramod Singh, Ram Sharan Singh, Punjab Singh and Naresh Singh, supplementary charge sheet was filed before the criminal Court having jurisdiction. On committal, the subsequent sessions trial against the present accused/appellants commenced. After recording evidence, the learned trial Judge recorded conviction and sentence against the appellants, hence, this appeal. 4. The contentions of the learned counsel appearing for the appellants are that the judgment under appeals is against the law and procedure and therefore same is liable to be set aside. It is submitted that to prove the guilt against accused, the prosecution examined abductees, namely, Haridat (PW-10), Vijay Bohare (PW-7), Geetaram Bohare (PW-6), Rai Singh (PW-3), and Shyambabu (PW-12). Second set of evidence produced by the prosecution is of witnesses Jandel Singh (PW-9), Jardan Singh (PW-5) and Shiv Kumar (PW-8) who were kidnapped but after asking their names by the dacoits they were released. Jardan Singh (PW-5) and Jandel Singh (PW-9), the abductees who were released on the spot informed the incident to SHO Police Station Ater. Third set of evidence is of witnesses Goverdhan (PW-2) and Gajadhar Prasad (PW-1) who delivered the ransom money for release of abductees to dacoits who were examined by the prosecution. No Investigating Officer was examined by the prosecution. Head Constable Narsingh Rao Sharma (PW-7) posted in Police Station Ater has written the F.I.R. (Ex.P/6) on the basis of Dehati Nalish. No test identification parade during investigation was conducted by the prosecution for identification of arrested accused. During investigation, no letter written by the accused or abductee or proof of delivery of ransom money was recovered. It is argued by the learned counsel that the persecution case rests only on the testimony of interested witnesses that too to some extent. Therefore, as per learned counsel, the prosecution by evidence of these witnesses could not be able to proved its case beyond reasonable doubts. Hence, it is prayed that by allowing the appeals, judgment under challenge may be set aside and the accused-appellants be acquitted of the offence. 5. Therefore, as per learned counsel, the prosecution by evidence of these witnesses could not be able to proved its case beyond reasonable doubts. Hence, it is prayed that by allowing the appeals, judgment under challenge may be set aside and the accused-appellants be acquitted of the offence. 5. Per contra, the learned Public Prosecutor appearing on behalf of the respondent/State contended that the prosecution succeeded to prove the guilt against accused/appellants by adducing evidence and there is no infirmity or illegality committed by the trial Court in awarding conviction and sentence against the accused. It is also contended that the abductees were in the custody of the gang for a considerable period, therefore, they rightly identified the culprits in Court identification. Laches pointed out by the appellants' learned counsel in not conducting the identification parade in case of arrest of the accused after period of three years from incident will not in itself sufficient to destroy the prosecution case. Hence, it is prayed that by dismissing the appeals, the judgment of the trial Court be maintained. 6. Heard the learned counsel appearing for the appellants and the learned Public Prosecutor for the respondent/State. Also perused the record of the trial Court and the law applicable to the present case. 7. The question for consideration in these appeals is whether the ingredients of offence of kidnapping for ransom are proved by the testimony of abductees and eye-witnesses, and/or whether the learned trial Judge has committed any illegality in placing reliance on the said materials before reaching at the conclusion. 8. The bare reading of section 364-A of Indian Penal Code, which is reproduced as under, indicates that kidnapping for ransom would be attracted when the kidnapper makes a demand to pay a ransom. "364-A. Kidnapping for ransom, etc. - Whoever kidnaps or abducts any person 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 to lay a ransom, shall be punishable with death or imprisonment for life and shall also be liable to fine". 9. 9. The abduction is defined in section 362. The provision envisages two types of abduction i.e. (i) by force or by compulsion; and/or (ii) inducement by deceitful means. The object of such compulsion or inducement must be going of the victim from any place. In the case of Malleshi vs. State of Karnataka, AIR 2004 SC 4865 , same aspect of the matter has been dealt with by the Apex Court observing as under :- "The offence of abduction is a continuing offence. This section was amended in 1992 by Act XLII of 1993 with effect from 22-5-1993 and it was subsequently amended in 1995 by Act XXIV of 1995 with effect from 26-5-1995. The section provides punishment for kidnapping, abduction or detaining for ransom. To attract the provisions of section 364-A what is required to be proved is (1) that the accused kidnapped or abducted the person; and (2) kept him under detention after such kidnapping and abduction; and (3) that the kidnapping or abduction was for ransom. Strong reliance was placed on a decision of the Delhi High Court in Netra Pal vs. State (NCT of Delhi), 2001 Cri.L.J. 1669 to contend that since the ransom demand was not conveyed to the father of PW. 2, the intention to demand was not fulfilled. To pay a ransom as per Black's Law Dictionary means "to pay price or demand for ransom". The word "demand" means "to claim as one's due"; "to require"; "to ask relief"; "to summon"; "to call in Court"; "An imperative request preferred by one person to another requiring the latter to do or yield something or to abstain from some act;" An asking with authority, claiming." The definition as pointed out above would show that the demand has to be communicated. It is an imperative request or a claim made. Netra Pal's case (supra) was one where a child was kidnapped. The Court found as a fact that since the victim was a child, demand for ransom could not have been made to him and only the demand to pay the ransom could have been made to his guardians. In that factual background it was held that the offence was not under section 364-A but was under section 362 of the Indian Penal Code. Accordingly conviction of the accused was altered to offences relatable to sections 363 and 365 of the Indian Penal Code. In that factual background it was held that the offence was not under section 364-A but was under section 362 of the Indian Penal Code. Accordingly conviction of the accused was altered to offences relatable to sections 363 and 365 of the Indian Penal Code. In the instant case as the factual position found by the trial Court and the High Court goes to show, the object of abduction was for ransom. This was clearly conveyed to the victim PW-2. He was even conveyed the amount to be paid. It cannot be laid down as a strait-jacket formula that the demand for payment 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 abducted 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 364-A. 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's case (supra) 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 364 A has no application as no demand has 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." 10. 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." 10. From the decisions in the cases of Netrapal (supra) and Malleshi (supra), it becomes abundantly clear that before an offence can be said to be covered under section 364-A of Indian Penal Code, there must be the factum of kidnapping or abduction and that such kidnapping or abduction must be for a ransom. The demand for ransom is also required to have been conveyed. 11. As discussed above, to prove the guilt against the accused, the prosecution examined Geetaram (PW-6) the abductee, who deposed that on 29th October 1999 at about 8 p.m., in night, he Vijaykumar, Shivkumar, Rai Singh and Jardan Singh were going to deliver the milk to market on their bicycles. As they reached near the well of Dadda, on the culvert of canal, eight dacoits surrounded them and took them towards the bank of canal. They caught hold of Vijaykumar and the witness by long cotton cloth (Safee) whereas others, namely, Shivkumar, Rai Singh and Jardan Singh were released and allowed to go. Then, the dacoits took them at the other side of bank where Haridat and Rambabu were kept by them from before. After an hour, the dacoits closed their eyes by cloth and carried them in a forest (Behad). There they did not ask their names. The dacoits restrained them in the forest for a month. After payment of ransom amount of ` 70,000/- by his father, he was released and then he returned to his home back. He categorically stated that the accused Punjab Singh, Ram Sharan Singh and Pramod Singh captured him. During that time, the dacoits were having two Mausers, one 12 bore double barrel gun, two 12 single bore, and two short barrel guns. He knew the names of the dacoits. The police after arrest of these dacoits, namely, Punjab Singh, Ram Sharan Singh and Pramod Singh caused their identification, during custody. 12. Another abductee Vijaykumar (PW-7) corroborated the incident as narrated by Geetaram (PW-6). He knew the names of the dacoits. The police after arrest of these dacoits, namely, Punjab Singh, Ram Sharan Singh and Pramod Singh caused their identification, during custody. 12. Another abductee Vijaykumar (PW-7) corroborated the incident as narrated by Geetaram (PW-6). As per his evidence, he remained in the company of dacoits for more than three months and after payment of ` 2,26,000/- by his brother to accused Amar Singh, he was released by the gang of abductors. He however did not identify the accused present in dock or named the abductors who captured him. Eventually, he is declared hostile because by the prosecution. 13. Rambabu (PW-11) another abductee supports the incident of abduction as stated by witness Geetaram (PW-6) and categorically deposed that among other abductors, there were Punjab Singh, Pramod, Amar Singh, Mohan Singh, Ram Sharan, Virendra who participated in the incident of his abduction. He also identified accused Punjab Singh, Pramod Singh, Ram Sharan in dock. He also stated that Punjab Singh was having Mauser 375 bore gun, Ram Sharasn was 315 bore gun and rest abductors were having 12 bore guns. The abductors after receiving sum of ` 50,000/- as ransom from his brother made him free. 14. Haridat (PW-10) was another abductee who in his Court statement supported the incident as narrated by witness Geetaram (PW-6). He stated that the miscreants kept all the four abductees in forest situated at bank of river Yamuna. He stated that Rambabu was first released and after two months Geetaram was released. He was released after three months. After reaching the house, his family members informed about payment of ` 1,11,000/- to abductor Amar Singh for his release from the clutches of abductors. Because he did not identify the accused in dock, he was declared hostile. 15. Rai Singh (PW-3), Shivkumar (PW-8) and Jardan Singh (PW-5) deposed in their statements that on the day of incident at about 8.00 p.m., in night, they along with witnesses Geetaram, Rambabu Haridat and Vijaykumar were going to village Bajaria for delivery of milk. As they reached at culvert named Dadaji ki Pulia, near about 4-6 unknown miscreants met them. Those miscreants compelled them to accompany upto the bank of canal. Thereafter, those miscreants released him, Shivkumar and Jardan. Shivkumar (PW-8) and Jardan (PW-5) deposed that gang of Punjab Singh abducted them. However, Shivkumar (PW-8) did not mention the names of the abductors. As they reached at culvert named Dadaji ki Pulia, near about 4-6 unknown miscreants met them. Those miscreants compelled them to accompany upto the bank of canal. Thereafter, those miscreants released him, Shivkumar and Jardan. Shivkumar (PW-8) and Jardan (PW-5) deposed that gang of Punjab Singh abducted them. However, Shivkumar (PW-8) did not mention the names of the abductors. It is relevant to mention here that witness Jardan (PW-5) after release from the capture of Punjab Ganj, lodged Dehati Nalish in the same night of the incident. 16. Gajadhar (PW-1) father of abductee Haridat deposed that abductee Haridat was captured and was kept for less than three months. He got letter of ransom for payment of ` 5,00,000/- for release of his son. Thereafter he made a physical contact to accused Punjab Singh and expressed his inability for payment of ` 5,00,000/-. Thereafter he received second letter of demand for payment of ` 3,00,000/-. He again met with accused Punjab Singh and again showed his inability for payment of the ransom amount. Thereafter he received third letter for demand of ransom of ` 2,00,000/-. When he went to the gang of Punjab Singh to make payment of ransom, all the three accused who are present in Court met him. One Amar Singh was also accompanying the three accused by that time. Then he paid ` One lac one thousand and fifty one for release of his son to Punjab Singh and Amar Singh (absconded accused). In cross-examination, he asserted that after one hour of the incident, he got information from Jandel and Shivkumar. He informed the police of Atroli ki tiwaria from where the information was sent to P.S. Ater. On next day morning, he informed police Ater that Punjab Singh and his gang captured his son and others. 17. Govardhan (PW-2), father of Geetaram deposed about the incident of abduction of his son and further that on receiving the letter for payment of ransom of ` One lac for release of his son Geetaram, he delivered the ransom amount of ` 70,000/- to Punjab Singh Gang. He categorically stated that the three accused present in dock received the ransom amount for release of his son. 18. Shyambabu (PW-12), brother of abductee Rambabu in his statement confirmed the incident like other witnesses. He categorically stated that the three accused present in dock received the ransom amount for release of his son. 18. Shyambabu (PW-12), brother of abductee Rambabu in his statement confirmed the incident like other witnesses. He also deposed that after one month of incident, he got a letter by post for payment of ransom amount of Rs. 2,00,000/- for release of his brother. Pursuant to the said letter, he arranged for the ransom amount. He accordingly reached the place of Baghraj Pura at about 11 p.m. in night and made payment of the ransom amount to Punjab Singh and Ram Sharan Singh. At that time, all twelve members of the gang including the accused who are present in dock met him. 19. It is not in dispute that some of the witnesses did not support the prosecution version in toto and consequently they were declared hostile. Despite being that, all the above witnesses well supported the incident of abduction of persons, namely, Geetaram, Rambabu and Haridat for ransom. As appeared from statement of Gajadhar (PW-1), he was threatened that in the event of failure to make payment of ransom amount, the abductors would kill his son. It also appears that the abductors including the members of Punjab Singh gang captured witness Rai Singh, Jardan Singh and Shivkumar but released them after sometime. Gajadhar (PW-1) father of abductee Haridat, Govardhan (PW-2) father of abductee Geetaram and Shyambabu brother of abductee Rambabu stated in their evidence about payment of the ransom amount for release of their sons and brother to accused Punjab Singh, Amar Singh and Ram Sharan and other members of the gang of dacoits, who were shown by the witnesses examined in Court to have been present at the place of payment. 20. 20. In Atmaram vs. State of M. P., (2012) 5 SCC 738 , at page 745 : the Hon. Apex Court on the point of hostility of the witnesses and to which extent their evidence can be held reliable observed :- "It is true that in the present case, some other witnesses have turned hostile and have not fully supported the case of the prosecution, but that by itself would not be a circumstance for the Court to reject the statements of PW 1 and PW 2, who are reliable and worthy of credence and more particularly, when their presence at the place of occurrence has been established beyond reasonable doubt." 21. In the light of the aforesaid discussions on the factual and legal aspects of the matter, the prosecution case stands established from the ocular and other evidence on record that on the date of incident gang of dacoits including the appellants/accused abducted persons Geetaram, Rambabu and Haridat for ransom. They kept them for a considerable period in secret places in forest for recovery of ransom amount from their relatives. Admittedly, the ransom amount was paid for release of the abductees Haridat by his father Gajadhar (PW-1), for Geetaram by his father Govardhan (PW-2) and for Rambabu by his brother Shayambabu. 22. The next contention of the accused/appellants is that a Dehati Naslish report (Ex.P/1) lodged by Jardan Singh just after the incident to P.S. After indicates that the capture of the above named witnesses was made by Punjab Singh Gang, who did not identify the accused as abductors when they were present in dock and therefore the false implication of the accused prima facie reveals. This contention has no force because other abductees well named and identified the accused as their abductors in dock. They were confined by the abductors for a considerable period, therefore, there should not be any mistaken identification on their part, as contended by the appellants' learned counsel. Further said argument raised by the learned counsel counsel also does not find support from the decision of the Apex Court in the case of Mahesh vs. State of M. P., (2011) 9 SCC 626 wherein it has been held :- "we find that the aforesaid first information report was submitted by PW 1 who was not an eye-witness to the incident. Although it has come in evidence that he was informed about the incident by PW 2, PW 4 and PW 5 immediately on his reaching the place of occurrence of the incident, yet since he was not the eyewitness to the incident, he may not have stated the said fact in the first information report for which it cannot be said that the entire prosecution case should falter. Besides, it is an established law that so far as the first information report is concerned, it is only a report submitted informing the police about the commission of the crime. It is not required that the said first information report should contain a detailed and vivid description of the entire incident. Further, it cannot be expected from the informant, especially, when the informant is a relative of the injured/deceased to give each and every minute detail of the incident in the first information report. Therefore, PW 1 who had filed the information with the police not being an eyewitness, it cannot be said that non-mentioning about the role played by the present appellants in the first information report would be in any manner fatal to the case of the prosecution." 23. Next submission of the learned counsel appearing on behalf of the appellant/accused is that no TIP during investigation was conducted for identification of the arrested accused by the abductee or eye-witnesses. Similar type of argument has been discussed and answered in the case of Sheo Shankar Singh vs. State of Jharkhand and anr., AIR 2011 SC 1403 wherein it has been held that :- "It is fairly well-settled that identification of the accused in the Court by the witness constitutes the substantive evidence in a case although any such identification for the first time at the trial may more often than not appear to be evidence of a weak character. That being so a test identification parade is conducted with a view to strengthening the trustworthiness of the evidence. Such a TIP then provides corroboration to the witness in the Court who claims to identify the accused persons otherwise unknown to him. Test Identification parades, therefore, remain in the realm of investigation. That being so a test identification parade is conducted with a view to strengthening the trustworthiness of the evidence. Such a TIP then provides corroboration to the witness in the Court who claims to identify the accused persons otherwise unknown to him. Test Identification parades, therefore, remain in the realm of investigation. The Code of Criminal Procedure does not oblige the investigating agency to necessarily hold a test identification parade nor is there any provision under which the accused may claim a right to the holding of a test identification parade. The failure of the investigating agency to hold a test identification parade does not, in that view, have the effect of weakening the evidence of identification in the Court. As to what should be the weight attached to such an identification is a matter which the Court will determine in the peculiar facts and circumstances of each case. In appropriate cases the Court may accept the evidence of identification in the Court even without insisting on corroboration. The decisions of this Court on the subject are legion. It is, therefore, unnecessary to refer to all such decisions." 24. As seen above, in present case the abducees had full opportunity of knowing the miscreants which they proved by identifying the accused/appellants in dock during trial, which can be held to be substantial evidence against the accused. 25. Lastly, the contention of the appellants/accused is that during investigation no letter written by the accused or abductee or proof of delivery of ransom money was recovered. 26. In the present case, witness Gajadhar (PW-1) Govardhan (PW-2) and Shyambabu (PW-12) had clearly stated in their statements before the Court that they made payment to accused Punjab Singh, Amar Singh (absconded accused till now) and Ram Sharan in the presence of other members of gang to get released their sons and brother named above from the abductors. But unfortunately the letters sent for ransom amount could not be seized. They further stated that the abductors threatened for causing death of their sons and brother if the ransom amount was not delivered to them. But unfortunately the letters sent for ransom amount could not be seized. They further stated that the abductors threatened for causing death of their sons and brother if the ransom amount was not delivered to them. Although the investigation did not make any attempt to collect the proof of payment of ransom amount paid to accused/abductors but in the light of the decision of the Apex Court in the case of Malleshi (supra), the failure on the part of the Investigating Officer in not seizing the letter of demand for recovery of ransom and not collecting proof of payment of ransom to abductors would not be fatal to the prosecution enabling the Court to reject the whole version given by the eye-witnesses. At this stage it would be relevant to refer relevant paras of the said decision. "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 abducted 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 364-A. 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." 27. Thus, it is crystal clear from evidence of abductee Geetaram, Haridat and Rambabu that after abduction and confinement in a secret place, a demand for ransom was made by the accused-appellants for release of the abductees and for release of the abductees, the ransom amount was paid to them. So, all ingredients of the offence are successfully proved. Thus, it is crystal clear from evidence of abductee Geetaram, Haridat and Rambabu that after abduction and confinement in a secret place, a demand for ransom was made by the accused-appellants for release of the abductees and for release of the abductees, the ransom amount was paid to them. So, all ingredients of the offence are successfully proved. As already pointed out above to attract the provisions of section 364-A of Indian Penal Code, the prosecution has to prove that the accused kidnapped or abducted a person and that the kidnapping was for ransom. For the purpose of getting paid a ransom, a demand has to be made and communicated and unless the price of retrieval or rescue is made, the question to pay a ransom would not arise. From discussions of the evidence on record, the essential ingredient to attract the provisions of section 364-A is very much available here which shows that a demand was made by the abductors/accused on the abductees and their relations asking for the payment of ransom. "To pay" means to set in motion the demand for payment which has to be communicated to the person from whom the demand to pay is made. Unless that is done prosecution cannot succeed in covering its case under section 364-A of Indian Penal Code In this case, what we find is that the demand for ransom was raised on abductees and the family of the abductees which were communicated by letters. Thus offence under section 364-A of Indian Penal Code is proved from the evidence on record. Resultantly, all the three appeals of the accused/appellants fail and are hereby dismissed. 28. Let a copy of this judgment be sent to the Superintendent of the jail concerned. The Lower Court's Record be sent back.