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Madhya Pradesh High Court · body

2013 DIGILAW 725 (MP)

Shahid Khan v. State of M. P.

2013-06-28

M.C.GARG, SHANTANU KEMKAR

body2013
JUDGMENT M.C. Garg, J. 1. The appellants were sent for trial in Crime No. 523/2005 to face charge under Section 364A of IPC on the allegation that the appellants at about 7.00 a.m. on 6-12-2004 in Gram Kohadi near the way towards Shamshan falling about 18 kilometers north of Police Station, Kalapipal, kidnapped the complainant-Dinesh Chandravanshi, kept him under detention and after threatening him with knife and revolver of death obtained an affidavit from him, so as to exonerate one Mahesh, who was facing trial in another matter in which the complainant was one of the witness. The case of the prosecution is based upon the complaint lodged by complainant Dinesh Chandravanshi, who gave the written report to the police having been written on 8-12-2004, which is Exh. P-6. On that basis, FIR was registered on 14-12-2004, vide Exh. P-7 and the case was registered under Sections 365,368 and 506/34 of IPC. In short, the case of the prosecution reads as under:-- 2. The police investigated the matter and arrested the appellants and carried out further investigation. They filed challan on 17-2-2005 under Sections 365, 368, 506, 323 and 347/34 of the IPC. However, at the instance of Sessions Court while dealing with the appellants for grant of bail, Section 364A of IPC was also added in the challan and thus the case was committed to sessions. 3. Charges were framed against the appellants under Section 364A of IPC to which the appellants pleaded denial and stated that they have been falsely implicated in this case. A plea was also taken by the appellant No. 4 that at the time of incident, he was admitted in the hospital in Bhopal. However, no evidence was led by the appellants in their defence. 4. On behalf of the prosecution, 18 witnesses were examined. Dinesh Chandravanshi (P.W. 6), in his deposition has deposed as under:-- 5. In his cross-examination, except on the point of delay, the only suggestion given for the purpose of alleged false implication by the appellants is as follows:-- 6. While Vishnuprasad Khati (P.W. 12) has been declared hostile, but Badriprasad (P.W. 8) and Vishnuprasad Khati (P.W. 12) have supported the case of the prosecution. Prahaladchand Shinde (P.W. 11), who is notary, attested the affidavit of Dinesh Chandravanshi. A carbon copy of the affidavit is Exh. P-12. The entry of the register is Exh. While Vishnuprasad Khati (P.W. 12) has been declared hostile, but Badriprasad (P.W. 8) and Vishnuprasad Khati (P.W. 12) have supported the case of the prosecution. Prahaladchand Shinde (P.W. 11), who is notary, attested the affidavit of Dinesh Chandravanshi. A carbon copy of the affidavit is Exh. P-12. The entry of the register is Exh. P-13 of which copy of it given to the police is Exh. P-16. The register has been taken into possession by Dinesh Chand (P.W. 6) alongwith Investigating Officer. Babulal (P.W. 18) has also supported the case of the prosecution. From the deposition of Dinesh Chandravanshi and in particular Paragraphs 5, 27 and 44 as also from the statement of Badriprasad (P.W. 8), it is clear that before this incident son of Badriprasad was murdered in which case, Bhure Khan, Shabuddin and Vakil Khan were impleaded as accused persons, amongst them one is the son of the appellant-Habeeb Khan and in that case Dinesh Chandravanshi (P.W. 6) is one of the witness. From the cross-examination of Rajeev Gobhuj (P.W. 3), it is also clear that Anil Gobhuj was admitted in that case. It may be observed here that kidnapping of the complainant and obtaining an affidavit from him as well as pendency of a criminal case against one Mahesh, in which case, the complainant was a witness, attestation of the affidavit before the notary, there is no cross-examination on behalf of the appellants. 7. Taking into consideration all these aspects, the Trial Court reached to the following conclusion:-- 8. On the basis of the aforesaid conclusion, the Trial Court held that in this case, the appellants committed offence under Section 364A of IPC. 9. In defence, the appellants have pleaded lodging of the FIR after few days as one of the reason for disbelieving the case of the prosecution, inasmuch as, while document (Exh. P-6) is alleged to have been written on 8-12-2004, the FIR registered on 14-12-2004, there is no explanation of delay. The other point is that complainant did not receive a sum of ` 50,000/- which according to Dinesh Chandravanshi, were to be paid by Mohid Khan. Learned Counsel for the appellants have also pleaded that in this case, even if the case of the prosecution is taken at the highest offence, if any, would not be under Section 364A of IPC. 10. This suggestion virtually proves the case of the prosecution. Learned Counsel for the appellants have also pleaded that in this case, even if the case of the prosecution is taken at the highest offence, if any, would not be under Section 364A of IPC. 10. This suggestion virtually proves the case of the prosecution. The question of delay has been discussed by the Trial Court in Paragraphs 20 and 21 of the judgment in the following words:-- 11. Reading these paragraphs alongwith statement made by Dinesh Chandravanshi (P.W. 6), who stated that he had given a complaint on the same date to the police and explained the delay, registration of the FIR by the police later, could not prove the defence in the case of the prosecution. In any event, there is another aspect of the matter, the appellants also filed carbon copy of the affidavit. 12. In this case, Dinesh Chandravanshi has supported the case of the prosecution in the case of Mahesh. The story cooked up by him was only to blackmail the appellants. In this regard, they have placed on record the deposition of Dinesh Chandravanshi in the case of Mahesh. The relevant deposition made by the complainant is reproduced here as under:-- 13. However, what is important is the noting of the learned Judge soon after the request was made for adjournment which again supports the case of the prosecution. The noting of the Court in this case are as follows:-- 14. On the aforesaid aspect, there is no cross-examination which supports the case of the prosecution inasmuch as, the story of the prosecution that on 6-12-2004, the incident happened in the manner as was deposed by Dinesh Chandravanshi, is reiterated by Dinesh Chandravanshi even after his examination in the case of Mahesh. In that statement, Dinesh Chandravanshi reiterated what happened with him. 15. In the aforesaid circumstances, in the absence of any cogent defence led by the appellants, there is no reason to disbelieve the version of Dinesh Chandravanshi. As such, the conclusion drawn by the Trial Court in Paragraphs 31, 32 and 33, does not call for any interference by us. Similarly, and for the same reason, we also agree with the observations made by the Trial Court in Paragraph 34. However, now the question is as to whether the conclusion drawn by the Trial Court makes out a case under Section 364 or under Section 364A of IPC. 16. Similarly, and for the same reason, we also agree with the observations made by the Trial Court in Paragraph 34. However, now the question is as to whether the conclusion drawn by the Trial Court makes out a case under Section 364 or under Section 364A of IPC. 16. In the judgment delivered by Delhi High Court in the case of Mukesh Vs. State of Delhi, delivered on 23-9-2011 has discussing the difference between the provisions under Section 364A and Section 364. Some observations are relevant which are reproduced here as under:-- 26. Section 364A, IPC was inserted in 1993, through an Amending Act (Act 42 of 1993). Before introduction of Section 364A, IPC, by Act No. 42 of 1993 (applicable w.e.f. 22-5-1993), the only penal provision for punishing the accused for kidnapping or abduction was for murdering or so disposing of the victim or to put the victim in danger of being murdered. Section 364, IPC existed for that purpose, it reads as follows:-- 364. Kidnapping or abducting in order to murder.-- Whoever kidnaps or abducts any person in order that such person may be murdered or may be so disposed of as to be put in danger of being murdered, shall be punished with imprisonment for life or rigorous imprisonment for a term, which may extend to ten years, and shall also be liable to fine. It is apparent from a plain look at the above provision that it was silent as regard those instances, where the abductors or kidnappers used to threaten to cause death or hurt for ransom. The Courts in such cases, used to convict the accused under Section 364with the aid of Section 384, IPC. Parliament, with intent to widen the scope of penal provisions and to punish abductors for the offence of kidnapping 'for ransom' introduced Section 364A. The Courts in such cases, used to convict the accused under Section 364with the aid of Section 384, IPC. Parliament, with intent to widen the scope of penal provisions and to punish abductors for the offence of kidnapping 'for ransom' introduced Section 364A. Section 364A as added by that amendment, originally read as follows:-- 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 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. The Statement of Objects and Reasons for the Amendment Act of 1993, reads as follows:-- Statement of Objects and Reasons.-- Kidnappings by terrorists for ransom, for creating panic amongst the people and for securing release of arrested associates and cadres have assumed serious dimensions. The existing provisions of law have proved to be inadequate as deterrence. The Law Commission in its 42nd Report has also recommended a specific provision to deal with this menace. It was necessary to amend the Indian Penal Code to Cri. A. Nos. 191, 224, 251, 272 and 368/2009, Page 11, provide for deterrent punishment to persons committing such acts and to make consequential amendments to the Code of Criminal Procedure, 1973. The provision, as originally inserted was considered inadequate, when the offence of kidnapping for ransom in order to compel any Foreign State or International Inter-Governmental Organization was committed. To cater to the menace of kidnapping for ransom in order to compel the Foreign State or International Inter-Governmental Organization, and to further widen the scope of section the words 'any other person' already existing in Section 364A prior to 1995, was substituted with words 'any Foreign State, International Inter-Governmental Organization or any other person' by Act No. 24 of 1995 in Section 364A, IPC, brought into force w.e.f. 26-5-1995. The provision, after amendment after 1995, reads as follows:-- 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. Thus, with effect from 26-5-1995, the offence of kidnapping or abduction did not cover only private individuals, but also, cases of abduction to compel private individuals for ransom as well as compel any Foreign State, International Inter-Governmental Organization to do or abstain from doing any act or to pay ransom. It is worth mentioning that the Amending Act 42 of 1993, also introduced an amendment to Section 39 of the Code of Criminal Procedure, which mandates every person aware of the commission of, or of the intention of any other person to commit any offence punishable under any of the following provisions of the Indian Penal Code (45 of 1860), namely-- *** *** *** (va) Section 364A, that is to say, offence relating to kidnapping for ransom, etc; *** *** *** Shall in the absence of any reasonable excuse, the burden of proving, which excuse shall lie upon the person so aware, forthwith give information to any of the nearest Magistrate or indulging Police Officer of such commission or such intention. 27. Section 364A alludes to 'Kidnapping' as well as 'Abduction'. Section 359 defines Kidnapping. It envisions two types of kidnapping, i.e., (1) kidnapping from India; and (2) kidnapping from lawful guardianship. Abduction (defined by Section 362) envisages two types of abduction, i.e., (1) by force or by compulsion; and/or (2) inducement by deceitful means. The object of such compulsion or inducement must be the removal of the victim from any place by force (involuntarily) or by deceit (voluntarily, through false promises or representations). 28. The decision in Vishwanath Gupta Vs. State of Uttaranchal, (2007) 11 SCC 633 held that for the prosecution to prove the offence, three facts had to be established. The object of such compulsion or inducement must be the removal of the victim from any place by force (involuntarily) or by deceit (voluntarily, through false promises or representations). 28. The decision in Vishwanath Gupta Vs. State of Uttaranchal, (2007) 11 SCC 633 held that for the prosecution to prove the offence, three facts had to be established. The Court held that:-- According to Section 364A, whoever kidnaps or abducts any person and keeps him in detention and threatens to cause death or hurt to such person and by his conduct gives rise to a reasonable apprehension that such person may be put to death or hurt, and claims a ransom and if death is caused then in that case the accused can be punished with death or imprisonment for life and also liable to pay fine. 6. The important ingredient of Section 364A is the abduction or kidnapping, as the case may be. Thereafter, a threat to the kidnapped/abducted that if the demand for ransom is not made, then the victim is likely to be put to death and in the event death is caused, the offence of Section 364A is complete. There are three stages in this section, one is the kidnapping or abduction, second is threat of death coupled with the demand of money and lastly, when the demand is not made, then causing death. If the three ingredients are available, that will constitute the offence under Section 364A of the Indian Penal Code. Any of the three ingredients can take place at one place or at different places..... In the decision reported as Suman Sood Vs. State of Rajasthan, (2007) 5 SCC 634 , it was held that:-- 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. 58. The term 'ransom' has not been defined in the Code. 59. As a noun, 'ransom' means 'a sum of money demanded or paid for the release of a captive'. As a verb, 'ransom' means 'to obtain the release of (someone) by paying a ransom', 'detain (someone) and demand a ransom for his release'. 58. The term 'ransom' has not been defined in the Code. 59. As a noun, 'ransom' means 'a sum of money demanded or paid for the release of a captive'. As a verb, 'ransom' means 'to obtain the release of (someone) by paying a ransom', 'detain (someone) and demand a ransom for his release'. To hold someone to ransom' means 'to hold someone captive and demand payment for his release'. 60. Kidnapping for ransom is an offence of unlawfully seizing a person and then confining the person usually in a secret place, while attempting to extort ransom. This grave crime is sometimes made a capital offence. In addition to the abductor a person who acts as a go between to collect the ransom is generally considered guilty of the crime. 61. According to Advanced Law Lexicon (3rd Edn., p. 3932), 'Ransom is a sum of money paid for redeeming a captive or prisoner of war, or a prize. It is also used to signify a sum of money paid for the pardoning of some great offence and or setting the offender who was imprisoned'. 62. Stated simply, 'ransom' is a sum of money to be demanded to be paid for releasing a captive, prisoner or detenu. The prosecution's obligation to prove all the ingredients, particularly, the use of force, or threat to do so, to cause death or bodily injury, to the victim, coupled with the demand for ransom, was highlighted in an earlier decision, reported as Anil Vs. Administration of Daman & Diu, (2006) 13 SCC 36. 17. Paragraph 49 of the order is also relevant, which concludes as to in what circumstances offence under Section 364 would be made out. The said paragraph reads as under:-- 49. Thus, it is clear that to complete the offence, there should be proof that the abducted person was, after abduction, either killed, or injured, or was threatened with such acts, or the conduct of the abductors would result in reasonable apprehension of such consequence. The demand for ransom is another essential ingredient. This Court is of the opinion that the conveying of ransom, coupled with threat to life, or bodily injury, conveyed to the victim, either overtly, or by conduct (of the abductors) is sufficient to complete the offence. The demand for ransom is another essential ingredient. This Court is of the opinion that the conveying of ransom, coupled with threat to life, or bodily injury, conveyed to the victim, either overtly, or by conduct (of the abductors) is sufficient to complete the offence. The object of the provision, introduced through the amendment is to tackle the menace of kidnapping for ransom, or holding people forcibly to achieve a specific illegal objective. It is not necessary that the abducted individual's family or friends are asked to pay; the object may be totally unconnected with them; yet, the demand would not be lawful. The injury or threat to injury part of the offence is couched in such wide terms that it is inessential for the prosecution to prove that the threat element was conveyed along with the demand for ransom. As long as the threat is discernible, and proved, the offence is said to have been established. 18. The Apex Court has also discussed the distinction between Section 364 and Section 364A of IPC delivered in the case of Vishwanath Gupta Vs. State of Uttaranchal, reported in (2007) 11 SCC 633 . The distinction drawn between two sections. Paras 9 and 17 of the aforesaid judgment are relevant, which are reproduced hereunder for the sake of reference:-- 9. The important ingredient of Section 364A is the abduction or kidnapping, as the case may be. Thereafter, a threat to the kidnapped/abducted that if the demand for ransom is not made, then the victim is likely to be put to death and in the event, death is caused, the offence of Section 364A is complete. There are three stages in this section, one is the kidnapping or abduction, second is threat of death coupled with the demand of money, and lastly, when the demand is not made, then causing death. If the three ingredients are available, that will constitute the offence under Section 364A of the Indian Penal Code. Any of the three ingredients can take place at one place or at different places. In the present case, the demand of the money with the threat perception has been made at Haldwani, Nainital. The deceased were kidnapped at Lucknow and they were put to death at Unnao. Therefore, the first offence was committed by the accused when they abducted Ravi Varshney and Anoop Samant at Lucknow. In the present case, the demand of the money with the threat perception has been made at Haldwani, Nainital. The deceased were kidnapped at Lucknow and they were put to death at Unnao. Therefore, the first offence was committed by the accused when they abducted Ravi Varshney and Anoop Samant at Lucknow. Therefore, Lucknow could have territorial jurisdiction to try the case. 17. As regards the completion of Section 364A is concerned, something more is required for that offence. Section 364A was introduced in the IPC by the Criminal Amendment Act of 42 of 1993, which came into effect with from 22-5-1993 because of the increasing number of cases, where the victim is abducted and a demand for money is raised with a threat perception or danger to the life on that person and that person is ultimately put to death. Such kind of offences are not covered under sub-section (2) of Section 181. It is not simply abduction or kidnapping. It is something more in ordinary case of abduction or kidnapping as defined in Sections 359 and 362. They are offence simpliciter of kidnapping and abduction. But, here in the case of Section 364A something more is there, that is, that a person was abducted from Lucknow and demand has been raised at Haldwani, Nainital with threat. If the amount is not paid to the abductor, then the victim is likely to be put to death. In order to constitute an offence under Section 364A, all the ingredients have not taken place at Lucknow or Unnao. The two incidents took place in the State of Uttar Pradesh that is abduction and death of the victims, but one of the ingredients took place that is threat was given at the house of the victims at Haldwani, Nainital demanding the ransom money otherwise the victim will be put to death. Therefore, one of the ingredients has taken place within the territorial jurisdiction of Haldwani, Nainital. Therefore, it is a case wherein the offence has taken place at three places, i.e., at Haldwani, Nainital, where the threat to the life of the victim was given and demand of money was raised, the victim was abducted from Lucknow and he was ultimately put to death at Unnao. Therefore, it is a case wherein the offence has taken place at three places, i.e., at Haldwani, Nainital, where the threat to the life of the victim was given and demand of money was raised, the victim was abducted from Lucknow and he was ultimately put to death at Unnao. Therefore, the trial could be conducted in any of the local jurisdiction that is Haldwani, Nainital, in the State of Uttaranchal, Lucknow or Unnao, within the State of Uttar Pradesh. But in the present case, the case was registered at Police Station, Haldwani, and the investigation started at Haldwani, therefore, the local jurisdiction to try the offence shall be at Haldwani, Nainital. If the investigation agency wants to prosecute or file a challan at Haldwani, Nainital Court, then District Nainital will have jurisdiction to try the matter. It is wrong to say that Additional Sessions Judge, Third Fast Track Court, Nainital has no jurisdiction. The view taken by the Additional Sessions Judge, Third Fast Track Court, Nainital is wrong and we set aside the same though High Court has set aside but for wrong reasons. In this view of the matter, we are not inclined to interfere with this matter. We dismiss the special leave petition and direct that Additional Sessions Judge, Nainital will have jurisdiction to try the offence. 19. Thus, it will be seen that in offence under Section 364A of IPC, demand of ransom is also involved and in case, ransom is not made, then consequence, which may even go to the extent of death of the person kidnapped who may not be the same person who has been taken by way of kidnap as has been shown in this case, but normally is a third person. 20. Similarly, in another judgment delivered in the case of Anil alias Raju Namdev Patil Vs. Administration of Daman and Diu, Daman and another, reported in (2006) 13 SCC 36, Hon'ble the Supreme Court has discussed and laid down the distinction between two offences, i.e., offence under Sections 364 and364A of IPC. In Paras 55 to 58 of the aforesaid judgment, distinction has been laid down. The said paragraphs are reproduced hereunder for the sake of reference:-- 55. The ingredients for commission of offence under Sections 364 and 364A are different. In Paras 55 to 58 of the aforesaid judgment, distinction has been laid down. The said paragraphs are reproduced hereunder for the sake of reference:-- 55. The ingredients for commission of offence under Sections 364 and 364A are different. Whereas, the intention to kidnap in order that he may be murdered or may be so disposed of as to be put in danger as murder satisfies the requirements of Section364 of the Indian Penal Code, for obtaining a conviction for commission of an offence under Section 364A thereof, it is necessary to prove that not only such kidnapping or abetment has taken place, but thereafter, the accused threatened 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. 56. It was, thus, obligatory on the part of the learned Sessions Judge, Daman to frame a charge, which would answer the description of the offence envisaged under Section364A of the Indian Penal Code. It may be true that the kidnapping was done with a view to get ransom but the same should have been put to the appellant while framing a charge. The prejudice to the appellant is apparent as the ingredients of a higher offence had not been put to him while framing any charge. 58. We, therefore, are of the opinion that the appellant could not have been convicted under Section 364A of the Act. We, however, find him guilty of commission of an offence under Section 364 of the Indian Penal Code. He, in our opinion, deserves the highest punishment prescribed therein, i.e., the rigorous imprisonment for life and we direct accordingly. The appeal is dismissed with the modification of sentence as also quantum thereof. In the present case also, while kidnapping involved, threat perception was also there but demand of ransom was not there. He, in our opinion, deserves the highest punishment prescribed therein, i.e., the rigorous imprisonment for life and we direct accordingly. The appeal is dismissed with the modification of sentence as also quantum thereof. In the present case also, while kidnapping involved, threat perception was also there but demand of ransom was not there. Applying the principles laid down in the aforesaid judgment to the facts of this case, we have no hesitation to hold that in this case, there was no issue of demand of ransom as is required under Section 364A of IPC and therefore, in this case, it cannot be said that the offence under Section 364A of IPC is made out. Thus, the conviction of the appellant is converted to conviction under Section 364 of IPC. The appellants are already in jail for a period of more than 8 years. Considering the totality of the facts and also keeping in view that the prosecution has not been able to establish that the money had been transferred to the complainant or that the complainant has come to the pressure build upon him, we reduce the sentence awarded to the appellants already undergone. C.c. as per rules.