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2017 DIGILAW 147 (GAU)

Lochiram Reang v. State of Mizoram

2017-02-02

AJIT BORTHAKUR, L.S.JAMIR

body2017
JUDGMENT AND ORDER : Ajit Borthakur, J. 1. Heard Mrs. Dinari T. Azyu, learned Amicus Curiae appearing for the appellant. Also heard Mrs. Linda L. Fambawl, learned Additional Public Prosecutor, Mizoram appearing for the respondent No. 1 and Mr. B. Lalramenga, learned counsel appearing for the respondent No. 2. 2. This appeal is directed against the Judgment & Order, dated 10.03.2015, passed by the learned Addl. Sessions Judge, Aizawl in Sessions Case No. 60/2013 under Section 364A of IPC convicting the accused appellant Sh. Lochiram Reang. 3. The prosecution case in brief is that one Sh. Laltlanhlua Zathang, Field Director, Dampa Tiger Reserve, (For short 'DTR') West Phaileng, Mizoram lodged an FIR on 20.02.2013 before the Officer-in-Charge, West Phaileng P.S, West Phaileng, Mamit District, in continuation to the verbal report already made over to his office on 19.02.2013 at 5 p.m, over mobile phone, from Tuichar Peng, alleging that 5 persons, namely Sh. Vanlalnghaka, Wildlife Guard of Damparengpui, Sh. Lalliansanga, Wildlife Guard of Teirei, Sh. Lalsangmawia, Wildlife Guard of West Phaileng, Sh. Nelson Lalruatkima, JCB Operator, Hunthar Veng, Aizawl, Mizoram and Sh. Lalrinawma, JCB Handyman, Hunthar Veng, Aizawl, who were detailed for routine patrolling duty inside DTR areas. It was suspected that the said persons had been abducted by some insurgent group for ransom on the night of 18.02.2013 and could not be located despite vigorous search. 4. Based on the above FIR, West Phaileng P.S. Case No. 4/2013, dated 20.02.2013, under Section 346A/34 of IPC read with Section 25 (1A) of Arms Act was registered. The Officer-In-Charge, West Phaileng P.S., S.I. Dhian Singh Minhas himself took up the investigation in the case and visited the place of occurrence and drew up a sketch map thereof. On transfer of the said Officer-in-Charge, the investigation was endorsed to S.I. Lalsangbera Sailo. In course of investigation, S.I. Lalsangbera Sailo recorded the statements of the victim persons, after they were released by the abductors, on 28.03.2013, and arrested the accused-appellant on 16.04.2013. The Investigating Officer obtained prosecution sanction order from the District Magistrate and on completion of the investigation, laid a charge sheet under Section 364A/34 of IPC read with Section 25 (1A) of the Arms Act against the accused-appellant and four others. 5. The Investigating Officer obtained prosecution sanction order from the District Magistrate and on completion of the investigation, laid a charge sheet under Section 364A/34 of IPC read with Section 25 (1A) of the Arms Act against the accused-appellant and four others. 5. The learned Chief Judicial Magistrate, Aizawl committed the case of the accused-appellant to the Court of the learned Sessions Judge, Aizawl Judicial District, Aizawl for trial, after compliance of the formalities under Section 209 Cr.P.C. Thereafter, on consideration of the material on the Case Diary and hearing the learned counsels for both the parties, the learned Additional Sessions Judge, Aizawl Judicial District, to whom the case was made over for disposal, framed charge under Section 364A/34 of IPC. The Charge was read over and explained in the language known to the accused appellant, to which he pleaded 'not guilty' and claimed to be tried. 6. In order to prove the above charge, the prosecution examined 8 out of 10 listed witnesses, while the defense cross examined them. After closing the case of the prosecution side, the statement of the accused appellant was recorded under Section 313 Cr.P.C. The accused appellant pleaded 'not guilty' and inclined to examine witnesses in defense. Accordingly, the defense examined 2 witnesses, while the prosecution cross examined them. 7. After hearing the arguments advanced by the learned counsels for both the parties and appreciation of evidence on record, the learned Additional Sessions Judge, Aizawl, held the accused appellant guilty under Section 364A of IPC and convicted accordingly. The learned Trial Court heard the accused-appellant and the learned Addl. Public Prosecutor on the point of sentence. Thereafter, upon consideration of the reply made by the accused appellant, the learned Additional Sessions Judge sentenced the accused appellant Lochiram Reang to undergo Rigorous Imprisonment for life and to pay a fine of Rs. 10,000/- and in default Simple Imprisonment for another 3 (three) months. 8. Mrs. Dinari T. Azyu, the learned Amicus Curiae for the accused appellant submitted that there is no cogent and convincing evidence on record to warrant a conviction of the appellant under the charge. Mrs. 10,000/- and in default Simple Imprisonment for another 3 (three) months. 8. Mrs. Dinari T. Azyu, the learned Amicus Curiae for the accused appellant submitted that there is no cogent and convincing evidence on record to warrant a conviction of the appellant under the charge. Mrs. Azyu submitted that even if the presence of the accused appellant during the period of commission of the offence, as it is made to appear from the evidence led by the prosecution is believed, his mere presence during the period of alleged abduction, by his unidentified confederates is not sufficient to rope him into the commission of the offence in view of the evidence that he was not in uniform of the militant outfit, without any arms during the relevant period and further, defence evidence to the effect that during the relevant period he had been tied up with jhum cultivation in the village. According to Mrs. Azyu, the learned Amicus Curiae, the evidence is silent about the accused appellant's any overt act towards abduction of the victims for ransom. Mrs. Dinari T. Ayzu, the learned Amicus Curiae has drawn our attention to the decision rendered by the Apex Court in Suman Sood @ Kamal Jeet Kaur v. State of Rajasthan reported in (2007) 5 SCC 634 . 9. Controverting the above, Ms. Linda L. Fambawl, learned Additional Public Prosecutor for the State of Mizoram fairly submitted that the victim prosecution witnesses have identified the accused appellant as one of their abductors, who moved them from place to place, under threat, to compel payment of ransom. Ms. Fambawl submitted that in view of the consistent evidence led by the prosecution and facts elicited from the two defence witnesses, ingredients of the offence, with which he is charged, are proved beyond all reasonable doubt and therefore, the learned Trial Court rightly held the accused appellant guilty of the charge and accordingly, awarded suitable punishment prescribed by law. Mrs. Linda L. Fambawl, learned Additional Public Prosecutor relied on the decision of the Apex Court in Vinod v. State of Haryana reported in (2008) 2 SCC 246 . 10. Mr. B. Lalramenga, learned counsel appearing on behalf of the informant submitted that the abductors repeatedly demanded payment of ransom amount of Rs. One lakh from him, over phone, but no amount was paid as it appears from the evidence of PW-1, the informant. 10. Mr. B. Lalramenga, learned counsel appearing on behalf of the informant submitted that the abductors repeatedly demanded payment of ransom amount of Rs. One lakh from him, over phone, but no amount was paid as it appears from the evidence of PW-1, the informant. Learned counsel further submitted that all the victim prosecution witnesses identified the accused appellant as one of the abductors numbering about 20 and his presence was noticed inside the DTR, Chikha. Mr. B. Lalramenga, learned counsel has cited the case law Surendra Chauhan v. State of M.P. reported in (2000) 4 SCC 110 . 11. A perusal of the F.I.R, dated 20.02.2013, lodged by P.W-1 Laltlanhlua Zathang, the Field Director, DTR, before the Officer-In-Charge, West Phaileng P.S revealed, inter-alia, the suspected commission of abduction of 5 (Five) persons, who were engaged on patrolling duty in DTR, for ransom, on the night of 18.02.2013 by some insurgency group, who were armed with sophisticated weapons, from Anti-poaching Camp at Chikha, DTR. The F.I.R contains reference to previous verbal report, in this regard, made to West Phaileng P.S, on 19.02.2013. This fact has come in the evidence of P.W-1, the informant, but defence appears to have not elicited any contradictory fact on this aspect more particularly from the evidence of P.W-2, S.I. Dhian Singh Minhas, the first Investigating Officer and P.W-8 S.I. Lalsangbera Sailo, the 2nd Investigating Officer in the case, perhaps as no General Diary Entry (G.D.E) was made at the Police Station to treat the same as the F.I.R. The evidence of P.W-2 and P.W-8, the Investigating Officers, shows that investigation was launched on the basis of the information contained in the aforesaid F.I.R, dated 20.02.2013, which disclosed the material details of the incident. It is needless to say that Section 154 Cr.P.C. requires the informant, irrespective of whether he is an eye-witness or not, to disclose the commission of a 'cognisable offence' which is defined in Section 2(C) of Cr.P.C. so as to enable the police to set the investigative process in motion to trace and bring to book the guilty. 12. Section 362 of IPC defines what is 'abduction'. 12. Section 362 of IPC defines what is 'abduction'. There is no distinct offence as abduction, but when abduction is made by forceful compulsion or inducement by deceitful means so as to make a person move from one place to another is abduction per se, which is punishable under various provisions of the code depending on the dominant intention or act done on the part of the accused. Section 364A of IPC is a penal provision when after such kidnapping or abduction a person is detained and the kidnapper or abductor 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 to pay ransom. To establish the charge, the prosecution must prove that kidnapping/abduction is done for ransom only as demanded by the accused. The Apex Court in Suman Sood's case (Supra) held that before Section 364A of IPC 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. The Apex Court further held that the term "ransom" has not been defined in the Code. Stated simply, "ransom" is a sum of money to be demanded to be paid for releasing a captive, prisoner or detenu. 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. 13. In the instant case, it is noticed that the victims, namely P.W-3 Vanlalfaka, P.W-4 Lalsangmawia, P.W-5 Lalliansanga, P.W-6 Nelson Lalruatkima, P.W-7 Lalrimawia, who are named in the F.I.R, were abducted by about 20 (twenty) unknown miscreants, out of whom about 10 (ten) or so were armed with fire arms from Chikha Anti-Poaching Camp, DTR where they were camping on the night of 18.02.2013. The said abducted persons were forced to walk through the sanctuary crossing the Indian border into the western side of Bangladesh and continued to be detained at different places for about 45 (forty five) days till they were released near Siliguri, where the representatives of the Government of Mizoram received them. The prosecution, however, has not examined any of those Government Officials, who received the victims at Siliguri and any other independent eye witness, obviously for non-availability. 14. P.W-1 Laltlanhlua Zathang, the Field Director, DTR, who lodged the F.I.R., on the basis of the verbal report of Pu Zohminga, a Wildlife Guard, about missing of the said persons from the camp at Chikha was not examined in the case. His non-examination is not a material infirmity in the case as he detected the incident of missing of the victims on 19.02.2013 at about 10 a.m. and as the evidence of the victim P.Ws reveals that they were abducted on the previous night. According to P.W. Nos. 3, 4, 5, 6 and 7, the victims, it was at about 8/8:30 p.m. the abductors, armed with fire-arms entered into their camp and forcibly took them away and moved them from place to place, continuously for many days in their captive. The defence appears to have not disputed this basic part of evidence led by the prosecution. 15. The next pertinent question that arises is whether the accused-appellant was among the miscreants, who abducted P.Ws 3, 4, 5, 6 and 7. Our quest to an acceptable answer to this vital aspect of evidence turns us to the evidence of the victims. According to P.W-3, Vanlalfaka, the accused appellant was seen around in a civilian dress and was with the abductors at different places, where they were shifted. P.W.-4 Lalsangmawia corroborated P.W-3, but further stated that the accused appellant carried a pistol in his bag and threatened them to kill if they made an attempt to flee away and further, that he was seen carrying provisions for them. The accused appellant's presence among the abductors has been reinforced by the defence by eliciting in cross-examination of P.W-4 that he was first seen on the night of 18.02.2013 and denied the suggestion that the abductors engaged him as servant. The accused appellant's presence among the abductors has been reinforced by the defence by eliciting in cross-examination of P.W-4 that he was first seen on the night of 18.02.2013 and denied the suggestion that the abductors engaged him as servant. It has been further elicited that the accused appellant who was fluent in Mizo language talked with them and assured that they would not be detained for long and that all of them belonged to the same tribe and further, that they were belonged to the terrorist outfit and that negotiation was going on for their release. P.W-5 Lalliansanga also stated that he saw the accused appellant at Chikha and he, who was unarmed, showed them the way through the forest. Likewise, P.W-6 Nelson Lalruatkima stated that he saw the accused appellant from the very night, they were abducted till the night they were set free near Siliguri and that he was playing the role of a guard upon them. P.W-7 R. Lalrinmawia also stated that he saw the accused appellant on the night of their abduction and so far he remembers, he was there when they were made to walk along the river towards Bangladesh and he was present among the abductors throughout the period of their abduction at different places. 16. With regard to the above, D.W-1 Hirendro, the President of Village Council/Court, Thaidor and D.W-2, Laltlankima, who is the resident of the same village of the accused appellant stated that during the period of alleged commission of the offence of abduction, the accused appellant was all along present at his village engaging himself in Jhum cultivation as that was the peak season for jhum cultivation. However, in his cross-examination it is clarified that he did not keep a watch on the accused appellant as to whether he used to go for cultivation everyday and that he was not among the group of people who helped him in jhum cultivation. On the other hand, D.W-2 in his cross-examination stated that his evidence in regard to the presence of the accused appellant in the village during the relevant period was based on what he heard from the persons with whom the accused appellant used to work in group and at the same time, admitted the defence suggestion that he did not see the accused appellant working along with any group of people in jhum cultivation. Thus, their (DWs 1 and 2) hearsay evidence appears to be inconsistent to the direct implicating consistent evidence of the victim P.Ws regarding presence of the accused-appellant among the abductors and further inconsistent to the accused's admission in his statement recorded under Section 313 Cr.P.C. that he accompanied the abductors towards Bangladesh. The Apex Court in Surendra Chauhan's case (Supra) held that when explanation of the accused given in the statement under Section 313 Cr.P.C. is inconsistent with the conduct and appears to be palpably false, it cannot be accepted. 17. Therefore, on careful appreciation of the evidence of the prosecution witnesses and the defence witnesses, it cannot conclusively be said that the accused appellant during the relevant period of commission of the alleged offence was present in his village. On the other hand, the evidence of the victim prosecution witnesses as afore-discussed lead to the only inference that during the relevant period of the incident, the accused appellant was all along present with the abductors from the time they were abducted from Chikha Anti-poaching Camp to Indo-Bangladesh border at different places of their forcible detention and so, we find him as one of the abductors of the victims beyond reasonable doubt. There is no explanation from the defence side as to why he did not report the cognisable offence to the Police had he been forcibly taken away by the abductors for the purpose of carrying rice towards Bangladesh as he claimed in his statement under Section 313 Cr.P.C. Hence, neither the evidence of D.Ws 1 and 2 nor the plea of the accused appellant can safely be relied on. 18. With regard to the allegation that the abductors demanded ransom, we find from the evidence of P.W-1, the informant that they demanded Rs. 1 lakh as ransom over telephone. Evidence is, however, silent in regard to the identity of the abductors who allegedly demanded ransom and there is no trace to the telephone number from which the alleged demand was made so as to enable us to establish the identity of the persons who actually abducted the persons for ransom. No relative of the victims, who allegedly received such phone calls is examine in the case. Therefore, mere statement that the abductors applied force on P.W-1, the informant and the relatives of the victims to pay ransom cannot legally be accepted. No relative of the victims, who allegedly received such phone calls is examine in the case. Therefore, mere statement that the abductors applied force on P.W-1, the informant and the relatives of the victims to pay ransom cannot legally be accepted. On scrutiny of the evidence of P.W-2, S.I. Dhian Singh Minhas, the first I.O. and P.W-3, S.I. Lalsangbera Sailo, the second I.O., it appears that the investigation did not suggest making of any demand for payment of ransom for the abducted persons and investigation, on the other hand, also revealed that no arms and ammunitions were recovered and seized during investigation. Therefore, in our view, as there is no evidence to show that the Government/State Forest authority or any private person was compelled by the accused and his associate abductors to pay ransom, provision of Section 364A of IPC will not be attracted and accordingly, the case in hand at best falls under Section 365 IPC, which embodies, inter-alia, the aggravated form of the offence of abduction as we find it established beyond reasonable doubt that the accused appellant and his associates committed the abduction of the victims with intent to secretly and wrongfully to confine them. It is respectfully submitted that the ratio-decidendi of Vinod's case (Supra) could not be applied to the facts and circumstances peculiar to the instant case. 19. The above presumption has been further reinforced by the statement of the accused appellant, recorded under Section 313 Cr.P.C. wherein, he unequivocally stated as herein quoted below: "Q. 8 Do you have anything more to say? Ans:- Last year while I was in my jhum field (lo vah lai) about 5 persons came and they told me to carry the rice which they were carrying and if I refused they will stab me. So, I carried the rice towards Bangladesh. I was made to spent the night in the forest and was let go on the next morning." 20. Situation thus, the accused is held guilty of commission of the substantive offence under Section 365 of IPC and convicted, reducing/modifying the punishment awarded by the learned Court below having found him guilty under Section 364A of IPC and accordingly, we sentence him to suffer Rigorous Imprisonment for a period of 7 (seven) years and to pay a fine of Rs. 5,000/- I.D Simple Imprisonment for 3 (three) months under Section 365 of IPC. 21. 5,000/- I.D Simple Imprisonment for 3 (three) months under Section 365 of IPC. 21. We order that the period of detention undergone by the accused appellant shall be set off against the sentence of imprisonment, under Section 428 Cr.P.C. 22. The appeal stands disposed of. 23. Forward a copy of this Judgment & Order to the learned Court below along with the LCR. 24. In appreciation of the assistance rendered by the learned Amicus Curiae, Mrs. Dinari T. Azyu, the fee of the Amicus Curiae is fixed at Rs. 9,000/- which shall be paid by the Mizoram State Legal Services Authority as per the Notification No. J.11013/1/2011-LJE dated 4.12.2014 issued by the Secretary to the Government of Mizoram, Law & Judicial Department and published in the Mizoram Gazette dated 5.12.2014.