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2022 DIGILAW 290 (UTT)

Mohd. Yunus v. State of Uttarakhand

2022-09-06

ALOK KUMAR VERMA, SANJAYA KUMAR MISHRA

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JUDGMENT : Sri Alok Kumar Verma, J. All these six appeals have arisen from a common judgment dated 07.09.2013/10.09.2013, passed by the learned District and Sessions Judge, Nainital in Sessions Trial No. 126 of 2007, ‘State vs. Mohd. Yunus and 11 Others’, whereby, the appellants have been convicted and sentenced to undergo rigorous imprisonment for life and a fine of Rs. 5,000/- each for the offence punishable under Section 364A of IPC, and, in default of payment of fine, they have been directed to undergo further imprisonment for a period of six months, and, they have been convicted and sentenced to undergo rigorous imprisonment for life and a fine of Rs. 5,000/- each for the offence punishable under Section 120B of IPC, and, in default of payment of fine, they have been further directed to undergo imprisonment for a period of six months. Both the sentences are directed to run concurrently. 2. These six Appeals are connected appeals, therefore, these appeals are being decided by this common judgment. File of Criminal Appeal No.378 of 2013 will be leading file. 3. The prosecution case in brief is, that the informant Ram Saran Verma (PW1) had lodged an FIR (Ext.Ka11) through his written information (Ext.Ka1) that on 11.12.2006 at 09:00 p.m., he received a phone call from his house that his son Rajiv Verma (PW4) had gone to his plot from the house by his motorcycle number UA04B-4366. He (informant) went to his plot. He saw that the motorcycle of Rajiv Verma, but, Rajiv Verma was missing. On enquiry, he came to know that 3-4 persons had come there by black coloured car. He further stated in his written information that about two years back, he had purchased a land. A dispute arose with one Munna Negi alias Mohan Negi, Chandan Negi and Gopal Negi. Therefore, on suspicion, he stated that the said persons abducted his son. 4. The First Information Report was registered against the aforesaid three persons under Section 364 IPC. During the investigation, involvement of the aforesaid three persons was not found. 5. According to the prosecution, one co-accused Brij Mohan Chauhan was arrested on 07.01.2007, who hatched the conspiracy of abduction of Rajiv Verma with other co-accused persons. Brij Mohan Chauhan informed the police that the victim Rajeev Verma (PW4) was abducted. During the investigation, involvement of the aforesaid three persons was not found. 5. According to the prosecution, one co-accused Brij Mohan Chauhan was arrested on 07.01.2007, who hatched the conspiracy of abduction of Rajiv Verma with other co-accused persons. Brij Mohan Chauhan informed the police that the victim Rajeev Verma (PW4) was abducted. After receiving the information of abduction, the police reached a house, situated in village Sirsol, District Budaun and rescued the victim. 6. After completion of the investigation, charge-sheet was filed. The charges under Sections 364A IPC and 120-B IPC were framed. The accused persons denied the charges and claimed to be tried. 7. The prosecution examined as many as 9 witnesses. PW1 Ram Saran Verma is informant and father of the victim. PW2 Smt. Geeta Verma is mother of the victim. PW3 Gopal Verma is the uncle of the victim. PW4 Rajiv Verma is a victim. PW5 Inspector D.C. Dhaundiyal was a member of the raiding party. PW6 Inspector Bhupendra Singh Dhoni and PW7 Sub-Inspector Ram Singh Mehta have corroborated the facts, as stated, by PW5. PW8 S.S.I. R.C. Makholia, and PW9 S.S.I. Harish Bahadur Singh are Investigating Officers. 8. After completion of the prosecution evidence, statements of the accused persons were recorded under Section 313 of the Code of Criminal Procedure, 1973. They denied all the incriminating evidence against them. 9. The appellants have not adduced any defence evidence. 10. After hearing both the parties and appreciating the evidence, the learned Trial Court has passed the impugned judgment. 11. Aggrieved by the judgment of conviction and sentence, awarded by the trial court, the appellants appealed to this Court. 12. Heard learned counsel for the parties. 13. The only submission raised by the learned counsel for the appellants is that the case does not fall under Section 364 A IPC. 14. Mr. Amit Bhatt, learned Deputy Advocate General for the State, fairly conceded that there is no evidence on record regarding the demand of ransom, therefore, the present matter does not fall under Section 364A IPC. He submitted that the present matter falls under Section 365 IPC. 15. We have carefully assessed the evidence, available on record. 16. Before examine the said contentions, it would be appropriate to refer to the provisions of Section 364A IPC and Section 365 IPC. Section 364A IPC and Section 365 IPC read as under:- “364A. He submitted that the present matter falls under Section 365 IPC. 15. We have carefully assessed the evidence, available on record. 16. Before examine the said contentions, it would be appropriate to refer to the provisions of Section 364A IPC and Section 365 IPC. Section 364A IPC and Section 365 IPC read as under:- “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 intergovernmental organisation 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.“ “365. Kidnapping or abducting with intent secretly and wrongfully to confine person.—Whoever kidnaps or abducts any person with intent to cause that person to be secretly and wrongfully confined, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.” 17. According to the evidence adduced by the prosecution, the appellants – accused persons in pursuance of a conspiracy abducted the victim Rajeev Verma (PW4). Rajeev Verma (PW4) stated that he was abducted from his plot on 11.12.2006. He further stated that on 07.01.2007, the police came and rescued him from the confinement of the accused persons. According to the witness Rajeev Verma (PW4), on 03.01.2007, the accused persons compelled him to write a letter to his father on their dictation. Admittedly, the said letter was not sent to the victim’s father. 18. Mere proving the abduction of a person is not sufficient for conviction for the offence under Section 364A IPC. In the present matter, demand of ransom has not been established. No demand was conveyed to any person for a ransom. Therefore, Section 364A IPC is not attracted in the present matter. 19. To attract the provision of Section 365 IPC what is required to be proved is – (i) The accused kidnapped or abducted any person; (ii) He did so with the intent to cause that person to be confined secretly and wrongfully. Therefore, Section 364A IPC is not attracted in the present matter. 19. To attract the provision of Section 365 IPC what is required to be proved is – (i) The accused kidnapped or abducted any person; (ii) He did so with the intent to cause that person to be confined secretly and wrongfully. 20. Criminal conspiracy is an independent offence. Conspiracy is a clandestine activity. A conspiracy is hatched in secrecy. 21. After careful analysis the evidence, adduced by the prosecution, we are satisfied that the prosecution has succeeded in establishing that the victim Rajeev Verma (PW4) had been abducted by the appellants with conspiracy. Therefore, the appellants are liable to be convicted for the offence punishable under Section 365 IPC and 120B IPC. The judgment of the learned Trial Court is modified to the above extent. 22. As a result, the instant appeal is partly allowed. The judgment of conviction and sentence under Section 364A IPC, dated 07.09.2013/10.09.2013, passed by the learned District and Sessions Judge, Nainital in the said Sessions Trial along with the sentence, passed for the offence under Section 120B IPC, are set-aside. 23. The present matter is pending since the year, 2006 and appeals are pending since the years, 2013 and 2014. 24. All the appellants are convicted for the offence punishable under Section 365 IPC, and, they are sentenced to undergo rigorous imprisonment for a period of three years along with a fine of Rs.5,000/- each, and, in default of payment of fine, appellants are directed to undergo further simple imprisonment for a period of one month. The appellants are sentenced to undergo rigorous imprisonment for a period of three years along with a fine of Rs.5,000/- each for the offence punishable under Section 120B IPC, and, in default of payment of fine, they are directed to undergo further simple imprisonment for a period of one month. Both the sentenced will run concurrently. 25. The learned counsel appearing for the parties are unable to state exactly how much period the appellants have already undergone. Hence, the learned District and Sessions Judge, Nainital, shall reexamine the records and, if, any additional sentence are to be undergone by the appellants, appropriate orders/warrants shall be issued. 26. Copy of the judgment be placed in the connected appeals.