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2013 DIGILAW 37 (TRI)

Tabjiraireang @ Dikenfareang v. State of Tripura

2013-12-10

DEEPAK GUPTA, S.TALAPATRA

body2013
JUDGMENT Deepak Gupta, C.J. This appeal, under Section 374 of the Code of Criminal Procedure, is directed against the judgment dated 18th June, 2008 passed by the learned Additional Sessions Judge, North Tripura, Dharmanagar in Case No. ST.56(NT/D) of 2007, whereby he convicted the appellant of having committed an offence punishable under Section 364A of the Indian Penal Code and sentenced him to undergo imprisonment for life and to pay a fine of Rs. 10,000/- and in default of payment of fine to undergo simple imprisonment for one year. The prosecution story briefly stated is that on 17.06.2006,4 unknown extremists wearing the uniform of Assam Rifles personnel entered village Kanchanpur. Thereafter they kidnapped P.W. 3, Bishnuram Reang and took him away into the forest. According to the prosecution, Bishnuram Reang was released after ransom of Rs. 30,000/- was paid. 2. It would be pertinent to mention that FIR Ext. 1 was lodged on 18.06.2006 at the instance of P.W. 2 Chandiram Reang. The victim was released after a week and his statement was recorded. The police carried out the investigation and examined the victim who identified the appellant as one of the persons who had kidnapped him. On this basis charge sheet was filed and the accused pleaded not guilty. After trial he has been convicted and sentenced as aforesaid. Hence this appeal. 3. As far as the kidnapping of the victim is concerned there is no doubt to the same. The victim himself appeared as P.W. 3 and stated that he was kidnapped by 4 tribal youths armed with country made weapons as well as AK47 rifles. His version has been supported by his wife P.W. 4, Smt. Dantirung Reang. The factum of kidnapping is also supported by the other villagers namely, P.W. 5 Uktirai Reang and P.W. 6 Rabijoy Reang. 4. The only two issues involved in this case are: (i) Whether the appellant Tabjirai Reang has been properly identified to be one of the members of the party which kidnapped the victim P.W. 3? (ii) Whether ransom was demanded and paid and even if paid, whether Tabjirai Reang can be fastened with the liability of having demanded or accepted ransom? As far as the identification of the appellant Tabjirai Reang is concerned, we may note that other than the victim no other witness has identified him. (ii) Whether ransom was demanded and paid and even if paid, whether Tabjirai Reang can be fastened with the liability of having demanded or accepted ransom? As far as the identification of the appellant Tabjirai Reang is concerned, we may note that other than the victim no other witness has identified him. Therefore, the only issue is whether the statement of the victim is reliable or not. In this behalf Sri Ratan Datta, learned counsel for the appellant, urges that whereas in Court the victim appearing as P.W. 3 has stated that he could only recognize one of the culprits i.e. the accused Tabjirai Reang in his statement recorded before the Police he had stated that he could identify all 4 miscreants. The relevant portion of the statement of the victim reads as follows: I stated to the I/O that I could recognize one of the miscreants namely Tabjiram Reang but it mentioned in the statement he could recognize all the four. Repeatedly we have been holding that the Presiding Officers, Public Prosecutors as well as the Defence Counsel are not aware of the basic provisions of the Sections 161 and 162 of the Code of Criminal Procedure. A statement recorded under Section 161 can only be used for the purpose of confronting the witness. Since such a statement is not required to be signed the statement must be proved in accordance with law. 5. In the present case the witness stated that he had told the I.O. that he could recognize one of the miscreants namely Tabjirai Reang. Thereafter the Court made an observation that in the Statement it is recorded that he could recognize all four. This is not the manner in which a confrontation is to be recorded. It is not the observation of the Court which is material but the explanation given by the witness as to the previous statement which is relevant. First of all the witness is to be asked whether his statement was recorded by the Police under Section 161 Cr.P.C. or not. It is only if he admits that his statement was recorded that he can be confronted with that statement. If he is confronted with the statement that portion of the statement with which he is to be confronted should be marked as ’A to A’ or ’B to B’ as the case may be and put specifically to the witness. It is only if he admits that his statement was recorded that he can be confronted with that statement. If he is confronted with the statement that portion of the statement with which he is to be confronted should be marked as ’A to A’ or ’B to B’ as the case may be and put specifically to the witness. It is the explanation of the witness which has to be recorded and not the observation of the Court. Thereafter the statement is not to be directly exhibited unless the victim admits that the statement otherwise the statement can only be marked and thereafter proved by the Investigating Officer. In the present case not only is the confrontation not proper but more surprisingly the statement under Section 161 Cr.P.C. has not even been exhibited. We are therefore left guessing as to what was recorded in the statement and as such the defendant cannot derive any benefit of the same. 6. Assuming for the sake of appreciating the contention of Sri Datta that the witness had stated in his statement under 161 of Cr.P.C. that he could identify all 4 witnesses and in Court he stated that he could identify only one that also would not be such a serious contradiction that it would make the identification itself doubtful. A person may be able to identify his assailants in many ways. He may be able to identify them by name, by face, as residents of a particular village etc. All these facts should have been brought out if the defence wanted to test the correctness of the statement of the witness that one of the members of the party which kidnapped him was the appellant Tabjirai Reang. 7. Another reason to accept the version of the victim is that the questions put by the defence to the victim when he appeared in the witness box clearly indicate that the defence accepted the fact that the victim and the appellant were known to each other prior to the occurrence. We are saying this because the suggestion put to the victim was that because of his enmity with the accused he was deposing against him. This means that the victim and the accused were known to each other. We are saying this because the suggestion put to the victim was that because of his enmity with the accused he was deposing against him. This means that the victim and the accused were known to each other. Other than putting a general question that there was enmity no question has been put to the witness as to how the enmity had arisen between the victim and the accused. Therefore, we are of the considered view that the accused was a member of the party which kidnapped the victim P.W. 3. 8. The next contention raised by Sri Datta is that there is no proof that the appellant demanded or received the ransom. He submits that proof of demand and acceptance of ransom is necessary before a person can be convicted under Section 364A. In this behalf he has relied upon a judgment of the Agartala Bench of the Gauhati High Court in Doctor Debbarma v. State of Tripura [Crl. APR No. 78 of 2002] wherein the Bench held as follows: 9................ The learned counsel submits that the evidence of P.W. 3 and P.W. 4(the two victims) with regard to the payment of ransom money cannot be accepted as direct evidence inasmuch as it is not to the victims to whom demand for ransom was made and it is also not the victims who had paid the ransom amount. Accordingly, it is contended by the learned counsel that the evidence of P.W. 3 and P.W. 4 to the effect that they have been kidnapped for ransom cannot be accepted as it is hit by Section 60 of the Evidence Act. 9. This question was considered by the Apex Court in Suman Sood @ Kamal Jeet Kaur v. State of Rajastan; (2007) 5 SCC 634 . In that case the appellant, Suman Sood was the wife of the leader of the group which had kidnapped the victim. The victim was then kept in the house of the husband of the Suman Sood. The Apex Court held that the accused Suman Sood could not be convicted for an offence under Section364A of the IPC. In para-57 of the judgment the Apex Court laid down the necessary ingredients of Section 364A IPC. 57. The victim was then kept in the house of the husband of the Suman Sood. The Apex Court held that the accused Suman Sood could not be convicted for an offence under Section364A of the IPC. In para-57 of the judgment the Apex Court laid down the necessary ingredients of Section 364A IPC. 57. Before the above section is attracted and a person is convicted, the prosecution must prove the following ingredients: (1) The accused must have kidnapped, abducted or detained any person; (2) He must have kept such person under custody or detention; and (3) Kidnapping, abduction or detention must have been for ransom. (Malleshi v. State of Karnataka; (2004) 8 SCC 95 ) The Apex Court found that there was no evidence, direct or indirect to connect Suman Sood with the kidnapping of Rajendra Mirdha for ransom. The only evidence against the Suman Sood was that after the victim was kidnapped, he was kept in a house where Suman Sood was also staying. It was Suman Sood who used to look after and provide food to the victim. The Apex Court held that though this may be sufficient to prove that she had the knowledge that the victim had been kidnapped but she had no knowledge that he had been kidnapped for ransom. The Court held that this however would not mean that the Suman Sood was also a party of the conspiracy in kidnapping for ransom. 10. This Court considered the judgment of the Apex Court in Kishore Debbarma v. State of Tripura [Crl.A(J) No. 82 of 2009] and held as follows: [15] While acquitting Suman Sood from the offence under Section 364A and maintaining her conviction under Section 365IPC, the Apex Court relied upon certain facts and one of the facts was that she was not a member of the party, which had kidnapped Rajendra Mirdha. There was also no evidence to show that Suman Sood was a member of the Khalistan Liberation Force (KLF). There was also no evidence to show that she even knew the Devendra Bhullar whose release was demanded for exchange of the victim Rajendra Mirdha. [16] The facts of the present case are different. It stands proved that Kishore Debbarma was a member of the extremist group which came to the market and kidnapped the victim. There was also no evidence to show that she even knew the Devendra Bhullar whose release was demanded for exchange of the victim Rajendra Mirdha. [16] The facts of the present case are different. It stands proved that Kishore Debbarma was a member of the extremist group which came to the market and kidnapped the victim. He was a member of the extremist group and had to leave the group since his mother was unwell. True it is, that there is no direct evidence to show that any ransom was demanded by him or in his presence, but as held by the Apex Court in para-47 of Suman Sood’s case, it is well settled that "an inference as to conspiracy can be drawn from the surrounding circumstances in as much as normally, no direct evidence of conspiracy is available." In Suman Sood’s case(supra) there was no direct evidence that Suman Sood was aware of the plan to kidnap Rajendra Mirdha or she took part in such a conspiracy. It was, however, proved that she was living in the same house in which Rajendra Mirdha, the kidnapped victim was kept. She was the wife of Daya Singh and it was she who was providing food to the victim. The Apex Court held that Rajendra Mirdha had been kidnapped by Daya Singh and his companions and had to be kept at a secret place. Suman Sood was aware of this fact and therefore, she was convicted for having committed offence under Section 364 IPC [17] in the present case, it is apparent that the victim was not kidnapped at the spur of the moment. It is clear from the evidence that the extremists had conspired to come in a group to the market from where they kidnapped Indrajit Deb. This was pre-planned. He was taken away by the extremists and kept in a village. This was also part of the conspiracy. Why would the extremists kidnap a villager? The only reason can be to extract ransom from his family members. The appellant must have been aware about this fact. It is just by quirk of fate that his mother fell ill and he had to leave the extremists group before the letter, Exbt.4 was written. Why would the extremists kidnap a villager? The only reason can be to extract ransom from his family members. The appellant must have been aware about this fact. It is just by quirk of fate that his mother fell ill and he had to leave the extremists group before the letter, Exbt.4 was written. It may be true that the letter was written when the accused was produced before the leader of the extremists group and by that time the appellant had left the group to visit his mother, but Kishore Debbarma being a member of that group and since he had taken active part in the kidnapping of the victim must have been aware that the victim was being kidnapped to extract ransom. This inference can be easily drawn from the evidence on record. He was therefore, rightly convicted for having committed an offence punishable under Section364A IPC. 11. Sri Datta has further placed reliance on a Division Bench judgment of the Apex Court in Runu Urang v. The State of Tripura [Crl.A(J)39 of 2009] wherein this Court held as follows: 10.........It would be pertinent to refer to Section 364A of IPC which reads as follows: [364A. 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 inter-governmental organization or any other person] to do or abstain from doing any act or to pay a ransom, shall be punishable with death, or imprisonment for life, and shall also be liable to fine.] 11. A bare perusal of the section clearly shows that the legislature decided to make certain forms of kidnapping a more serious offence. A bare perusal of the section clearly shows that the legislature decided to make certain forms of kidnapping a more serious offence. To fall within the ambit of Section 364A not only should it be proved that kidnapping/abduction has taken place but furthermore the prosecution must prove that the person who carried out the kidnapping or abduction had threatened to cause bodily injury or death to the kidnapped or abducted person; or by his conduct gives rise to a reasonable apprehension that such person may be put to death or hurt shall be caused to him; or has actually caused death or hurt such a person; an offence under Section can also been made out when the abductor tries to compel the government or any governmental organization to do or abstain from doing any act or thing, that it is to say to compel the Government or some person in authority to meet the demands of the kidnapper whether they are in the negative form or positive form. Lastly, an offence under Section 364A of I.P.C. is made out in case there is a demand to pay a ransom. Such an offence of kidnapping/abduction would be punishable with death or imprisonment for life. There can be no dispute with the legal proposition that before a person is convicted of an offence under Section 364A the prosecution must prove that there has been demand and payment of ransom. 12. As far as the present case is concerned, the two relevant witnesses for this purpose are P.W. 5 and P.W. 6. P.W. 5 state that after the victim was kidnapped he was released by the extremists on payment of ransom of Rs. 30,000/- though initially a demand was made for Rs. 2,00,000/-. He (Uktirai Reang) also states that he and P.W. 6 Rabijoy Reang paid the ransom to the collection party of the extremists who then released the victim from captivity. In cross-examination he stated that the ransom was paid at Dhananjoy Para Basti and the collection party consisted of only one person. P.W. 6 gives a similar version and he also states that the victim was released on payment of ransom of Rs. 30,000/- which was paid by him and P.W. 5. He however states that the amount was paid to Pradhanjoy Reang who later left extremist activities. 13. P.W. 6 gives a similar version and he also states that the victim was released on payment of ransom of Rs. 30,000/- which was paid by him and P.W. 5. He however states that the amount was paid to Pradhanjoy Reang who later left extremist activities. 13. It is urged by Sri Datta that these witnesses have not stated from where they collected the money and who demanded the ransom. There is no doubt that both the witnesses have not stated who demanded the ransom. However, as far as collection of money is concerned, the witnesses were not required to give any explanation and the defence in cross-examination has not put any question to these witnesses to explain how the witnesses had arranged for the ransom amount. The Court can take judicial notice of a fact that when a co-villager is kidnapped the entire village may contribute to collect the ransom amount. At the same time we must also clearly state that these witnesses have not stated how, in what manner and who demanded the ransom. However the fact that the ransom was paid shows that the ransom was demanded. There may be some defect in the manner in which the police investigated the case and Public Prosecutor put forth his case but the fact of payment of ransom clearly shows that the ransom was demanded. There can be no payment of ransom without a demand. 14. The next issue is whether the appellant can be convicted under Section 364A because admittedly there is no evidence on record to show that it was he who demanded or received the ransom. When a person is kidnapped it is not necessary that the demand for ransom is directly made by the persons who are the actual kidnappers. More often than not, they will not like to get themselves directly involved in the demand for ransom because that will give a clue to police where they are. Ransom will always be demanded in a clandestine manner and through some agent or by sending a note or by anonymous telephone call. Anybody who is demanding ransom will never disclose his/her identity. Similarly the payment of ransom may be made by various means. Sometimes ransom may be paid to persons who are not identified or cannot be identified because their faces are covered. Anybody who is demanding ransom will never disclose his/her identity. Similarly the payment of ransom may be made by various means. Sometimes ransom may be paid to persons who are not identified or cannot be identified because their faces are covered. Sometimes ransom may be asked to be kept at a particular place and collected from there. Whatever may be mode of payment and collection of ransom once it is proved that ransom has been paid the Court can draw a reasonable inference that the persons who kidnapped the victim were the persons who demanded the ransom because no other person can demand the ransom and no other person can release the victim from captivity. In this case it stands proved that after the amount of Rs. 30,000/- was paid the victim was released from captivity. This clearly indicates that the demand for ransom was made by the party which kidnapped the victim. Once we have held that the appellant was a member of that party he has necessarily to be convicted under Section 364A also since the kidnapping was done with a view to extort ransom. In this view of the matter we find no merit in the appeal which is accordingly dismissed.