Research › Search › Judgment

Andhra High Court · body

2023 DIGILAW 985 (AP)

Bandi Krishna v. State of Andhra Pradesh

2023-07-05

CHEEKATI MANAVENDRANATH ROY, TARLADA RAJASEKHAR RAO

body2023
JUDGMENT : TARLADA RAJASEKHAR RAO, J. 1. Criminal Appeal No. 1214 of 2016 is filed by A3 and Criminal Appeal No. 1219 of 2016 is filed by A1 and A2 under Section 374(2) of the Code of Criminal Procedure, 1973 (Cr.P.C.). Both the appeals are filed questioning the conviction and sentence imposed against A1 to A3, vide judgment dated 17.11.2016 in Sessions Case No. 13 of 2014 on the file of the Court of II Additional Sessions Judge, Kadapa. 2. The police filed charge sheet stating that the accused Nos.1 to 3 have committed an offence punishable under Section 364A I.P.C. read with Section 34 I.P.C. on the report given by the father of the boy (P.W.2) (hereinafter called as ‘boy’), i.e., P.W.1-Bandi Bala Subbaiah to the police. The de facto complainant has lodged the report before the police stating that one unknown person telephoned to him and threatened that his son is with him and demanded to pay Rs.12,00,000/- to release his son, otherwise they would kill his son. The incident occurred on 08.04.2013 and thereafter the de facto complainant has lodged the report before the police on 09.04.2013 at 6-00 a.m. and the accused were arrested on 11.04.2013. 3. On conducting a detailed investigation, the police filed the charge sheet after examining the witnesses P.W.1 to P.W.8 and P.W.7, who is the II Additional Judicial Magistrate of the First Class, Kadapa, who conducted test identification parade of the accused. 4. During the course of investigation, the police has recorded confessional statements of A1 to A3. 5. The brief accusation against the accused is that A1 and A3 hatched up a plan to kidnap P.W.2-Bandi Surya, who is the only son of P.W.1-Bandi Bala Subbaiah to demand money as he has plenty of money and A3 also advised A1 to kidnap son of P.W.1 with the help of another person and he will pass information to A1 for which A1 accepted. On 08.04.2013, A3 telephoned to A1 and asked him to come to kidnap P.W.2. Then A1 took motorcycle of his friend Hero Honda Passion Plus bearing No. AP 03 AC 7105 and called A2 and informed about their plan by offering share in the money. Then A1 and A2 came to Mydakur at 12-00 noon and telephoned to A3 for which A3 asked/informed them to come saying that everything is ready. Then A1 took motorcycle of his friend Hero Honda Passion Plus bearing No. AP 03 AC 7105 and called A2 and informed about their plan by offering share in the money. Then A1 and A2 came to Mydakur at 12-00 noon and telephoned to A3 for which A3 asked/informed them to come saying that everything is ready. Then A1 dropped A2 at G.V.Satram and informed A2 that he will bring the child of P.W.1. Then A1 went to Kesilingayapalli, where he found P.W.2 de-puncturing his bicycle and enquired about whereabouts of P.W.1 who is the father of the boy. Then A1 asked P.W.2-boy to show P.W.1 and picked up him on his motorcycle and went to G.V.Satram where A2 boarded the motorcycle and proceeded to Gangayapalli. After reaching Gangayapalli, they stopped motorcycle and telephoned to P.W.1-Bandi Bala Subbaiah at 2-00 p.m. and informed that they have kidnapped his son and demanded Rs.12,00,000/-. Thereafter, A3-Bandi Krishna telephoned to A1 and confirmed about the kidnap and advised A1 to demand Rs.12,00,000/-. A3 also informed that he will update the information. While A1 and A2 were discussing about the process, the child-P.W.2 escaped through fields and the boy who called his father and informed about his whereabouts. Thereafter, the P.W.2- father went to the boy and picked up the detainee to his home. 6. Basing upon the above said facts, the police filed charge sheet for the offence punishable under Section 364A I.P.C. 7. Originally, the matter was made over to the Assistant Sessions Judge, Proddutur, and the learned Assistant Sessions Judge, Proddutur examined P.Ws.1 and 2 and recorded their evidence. The learned Assistant Sessions Court has transferred the case to the Sessions Court. On transferring the case under Section 326 Cr.P.C. to the Court of II Additional Sessions Judge, Kadapa, the case was registered as Sessions Case No. 13 of 2014 and the learned II Additional Sessions Judge noticed that the charges were not properly framed, the learned II Additional Sessions Judge has framed additional charge under Section 364A r/w 34 I.P.C. against A1 to A3 on 07.10.2016. 8. During the trial, P.Ws.1 to 8 were examined and P.Ws.3, 4 and 6 turned hostile and got marked Exs.P1 to P18, Exs.D1 and D2 and material objects M.Os.1 to 4. 9. 8. During the trial, P.Ws.1 to 8 were examined and P.Ws.3, 4 and 6 turned hostile and got marked Exs.P1 to P18, Exs.D1 and D2 and material objects M.Os.1 to 4. 9. Learned trial Judge has found the accused guilty for the offence under Section 364A r/w 34 I.P.C., relying on the confessional statements of A1 to A3 and also relying on the evidence of P.W.7, who is the II Additional Judicial Magistrate of the First Class, Kadapa, who conducted test identification parade and further relying on the statement made by the detainee under Section 164 Cr.P.C. and convicted the accused for the offence under Section 364A I.P.C. and sentenced A1 to undergo rigorous imprisonment for life and to pay fine of Rs.1,000/- and in default of payment of fine, to undergo simple imprisonment for one month and A2 and A3 are convicted for the charge under Section 364A r/w 34 I.P.C. and sentenced them to undergo rigorous imprisonment for life and to pay fine of Rs.1,000/- each and in default of payment of fine, to undergo simple imprisonment for one month. 10. Against the said judgment in Sessions Case No. 13 of 2014 dated 17.11.2016, the present appeals came to be filed under Section 374(2) Cr.P.C. 11. Learned counsel for the appellants-accused would submit that the judgment dated 17.11.2016 in Sessions Case No. 13 of 2014 is erroneous and the learned trial Judge ought not to have relied on the confessional statements, as it is hit by Sections 25 and 26 of the Evidence Act and also ought not to have relied on the test identification parade as it was not properly conducted and the investigating officer has not collected the data from the service providers of the SIM cards under Section 65B of the Evidence Act and also contended that in the statement made by the boy, there is no allegation about the kidnap/abduction for ransom and no independent evidence, except the evidence of P.Ws.1 and 2, there is no corroborative evidence and there are no ingredients under Section 364A I.P.C. and therefore the trial Judge ought to have acquitted the accused and pleaded to allow the appeals. 12. Now the question for consideration before this Court is, whether in view of the grounds urged in the appeals, the conviction and sentence imposed against the appellants-accused are liable to be set aside? 13. 12. Now the question for consideration before this Court is, whether in view of the grounds urged in the appeals, the conviction and sentence imposed against the appellants-accused are liable to be set aside? 13. On entire reading of the judgment of the trial Court, it appears that the learned Sessions Judge relied on the confessional statement of the accused for convicting the accused and also relied on the evidence of the II Additional Judicial Magistrate of the First Class, Kadapa, who conducted test identification parade. As per the test identification parade, the boy first has identified non-suspects and later, identified the suspects, i.e., A1 to A3. As the detainee is not able to properly identify the accused as he has identified the non-suspects and later identified the suspects, his evidence of identification of the accused is doubtful. The learned Sessions Judge, therefore, grossly erred in convicting the accused on the basis of the said defective test identification parade. 14. Learned Sessions Judge has taken into consideration the confessional statements of the accused for convicting the accused. It is trite law, the statement of accused made to a police officer during investigation cannot be used for any other purpose, and it is hit by Section 25 of the Evidence Act and they cannot be relied upon for convicting the accused. 15. Except the information given by the accused to a police officer leading to discovery of fact which may or may not prove incriminatory as may be proved admissible under Section 27 of the Evidence Ac, the remaining part of such statements in the form of confession are clearly inadmissible in evidence and they cannot be made basis for convicting the accused. 16. The Hon’ble Supreme Court in the case of Madhu vs. State of Kerala, (2012) 2 SCC 399 has held as under: “As an exception, Section 27 of the Indian Evidence Act provides that a confessional statement made to a police officer or while an accused is in police custody, can be proved against him, if the same leads to the discovery of an unknown fact. The rationale of Sections 25 and 26 of the Indian Evidence Act is, that police may procure a confession by coercion or threat.” 17. The rationale of Sections 25 and 26 of the Indian Evidence Act is, that police may procure a confession by coercion or threat.” 17. In the present case, basing upon the confessional statement of the accused, the police has seized one cell phone (Samsung company black colour) with SIM card No. 9642314254 marked as M.O.1 and another phone (M 5700 black colour) with idea SIM card marked as M.O.2 and M.O.3 is one cell phone of Nokia company with SIM No. 9642071053 from the possession of A2 under the cover of confessional statement in the presence of mediators and which was marked as Ex.P16. Basing upon the confessional statement, the police have seized one Hero Honda Passion Plus motorcycle bearing No. AP03-AC-7105 under the cover of panchanama, i.e., Ex.P17 and M.O.4 is the motorcycle. The learned Sessions Judge has taken the said confessional statement as one of the grounds for conviction of the accused for the offence under Section 364A r/w 34 I.P.C. The same is not valid under law. 18. As per the confessional statement, except the seizure of the above material objects, the police have not verified whether the SIM cards belong to the accused or not and whether stand in the name of accused or not and they have not obtained any information from the service providers to prove the allegation of the demand of money for ransom with threat to end the life of the detainee, if the demanded amount is not paid and they have not obtained any call data of the accused from the service providers. The prosecution has failed to produce any evidence from the operators regarding the registration of the aforesaid phone numbers. Except the seizure, the prosecution has not obtained any information with regard to the call data and there is no evidence that from which phone number the call for ransom was evasively made to the father of the boy. In the absence of such evidence, mere seizing of the phones is not sufficient and the same cannot be relied upon as the call data recordings were not furnished by the prosecution as per Section 65B of the Evidence Act. In the absence of such evidence, mere seizing of the phones is not sufficient and the same cannot be relied upon as the call data recordings were not furnished by the prosecution as per Section 65B of the Evidence Act. The cell phones which were seized and the motorcycle would not have any bearing on the case itself and the Nokia phone was recovered from A1 and it was not known whether the said phone was used for commission of offence and no evidence has been adduced or produced by the prosecution as to how these objects have a bearing on the case. 19. Hence, the confessional statement made by the accused cannot be relied upon as the disclosure has been made to the police by the accused while they were in their custody. 20. Except statement of P.W.1, there is no other evidence to substantiate the case of the prosecution that the boy was kidnapped/abducted for ransom. Hence, in the absence of any corroborative evidence, the solitary statements of P.Ws.1 and 2 cannot be relied on to convict the accused. 21. In Vishwanath Gupta vs. State of Uttaranchal, (2007) 11 SCC 633 the Hon’ble Supreme Court held that for the prosecution to prove the offence, three facts had to be established. The Court held that: “8. 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. 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. 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.” 22. In Suman Sood vs. State of Rajasthan, (2007) 5 SCC 634 it is held as follows: 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. (3) Kidnapping, abduction or detention must have been for ransom. 23. The term 'ransom' has not been defined in the Code. 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.” (Concise Oxford English Dictionary, 2002; p.1186). 24. Kidnapping for ransom is an offence of unlawfully seizing a person and then confining the person usually in a secrete 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. 25. 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.” 26. Stated simply, 'ransom' is a sum of money to be demanded to be paid for releasing a captive, prisoner or detenu.” 27. 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.” 26. Stated simply, 'ransom' is a sum of money to be demanded to be paid for releasing a captive, prisoner or detenu.” 27. In Badshah vs. State of U.P. JT 2008 (2) 316, the Hon’ble Supreme Court explained the ingredients of Section 364 of the Penal Code with the following observations: “Ingredients of the said offence are (1) Kidnapping by the accused must be proved, (2) it must also be proved that he was kidnapped in order : (a) that such person may be murdered; or (b) that such person might be disposed of as to be put in danger of being murdered. The intention for which a person is kidnapped must be gathered from the circumstances attending prior to, at the time of and subsequent to the commission of the offence. A kidnapping per se may not lead to any inference as to for what purpose or with what intent he has been kidnapped.” 28. The provisions of Section 364A I.P.C. came up for consideration before the Supreme Court in Malleshi vs. State of Karnataka, (2004) 8 SCC 95 the Hon’ble Supreme Court elaborated upon the essential ingredients of Section 364A thus: “To attract the provisions of Section 364A what is required to be proved is: (1) that the accused kidnapped or abducted the person; (2) kept him under detention after such kidnapping and abduction and (3) that the kidnapping or abduction was for ransom.” 29. The Hon’ble Supreme Court noted that to pay a ransom means “to pay a price or demand for ransom.” The Court noted that while the object of abduction is ransom, it cannot be laid down as the straitjacket formula that the demand for payment has to be made to a person who ultimately pays. A person may be abducted and may be told that in order to secure his release the members of his family would have to pay a certain amount of money. The money may actually belong to the person abducted. The payment for release is made by a person to whom the demand is made. A person may be abducted and may be told that in order to secure his release the members of his family would have to pay a certain amount of money. The money may actually belong to the person abducted. The payment for release is made by a person to whom the demand is made. Merely because the demand could not be conveyed to some other person after it was made to the kidnapped or abducted person as the accused is arrested in the meantime, that does not take away the offence out of the purview of Section 364A. The Supreme Court noted that the true test is: “What was the object” of the kidnapping or abduction: Ultimately the question to be decided is 'What was the intention? Was it demand or ransom?” 30. It is the obligation of the prosecution 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 of ransom. 31. Now this Court has to apply the above said law to the present facts of the case. The relevant portion of the statement made by the boy i.e., P.W.2 under Section 164 Cr.P.C., which is extracted hereunder: On 8.4.13 I returned from School. My cycle got punctured. While I am removing tube from the cycle tyre, Shaik Mubarak came and asked me where have gone your father. I said that I do not know. He pretended before me that he is calling my father through phone. Later he said to me that my father is at G.V. Satram and he does not know the rastha to go to G.V. Satram and asked me to show rastha. I did not go for some time since he is waiting for me, I got up into his scooter and went along with him. He took me to the outskirts of Gangayapalli after crossing G.V. Satram. There he pretended that he is talking with my father on phone. As I do not know the rastha I brought your child and immediately after some time ‘No” No” simply I told to you like that. And cut of his phone. Later said that he is going near to my father and left. Then I came to road side. There some children brought me to Gangayapalli from that village. As I do not know the rastha I brought your child and immediately after some time ‘No” No” simply I told to you like that. And cut of his phone. Later said that he is going near to my father and left. Then I came to road side. There some children brought me to Gangayapalli from that village. I made a call to my father through the phone of one Ayyappa. I told the matter. 32. It is admitted by P.W.2 that he has not stated in the statement recorded in Section 164 Cr.P.C. The relevant portion is hereby extracted: It is true I have not stated in my statement recorded under sec.164 of Cr.P.C. that the accused No. 2 boarded the motor cycle of the accused No. 1 on the way to G.V. Satram. It is true I did not state in my statement recorded under sec. 164 of Cr.p.C. that the accused kidnapped me and demanded my father for Rs.Twelve lakhs. With the consent of A.P.P., and defence counsel, as the witness also identified and admitted the above referred statement recorded under sec. 161 of Cr.P.C. of him. 33. As per the statement of the boy, the accused A1 came to the house of the boy at Kesalingayapalli village, where the boy reached to home from school where he de-puncturing his bicycle then A1 asked whereabouts father of the boy then the boy said he was on business to Gangayapalli, then A1 asked to accompany him to Gangayapalli that he cannot identify his father and the boy agreed and followed/accompanied A1 on the way to Gangayapalli A2 was picked up at G.V.Satram then they reached Kesalingayapalli, there A1 & A2 pretended as if they made phone call to the father of the boy in fact they have not called then the boy suspected A1 & A2, then the boy escaped from there and soon he called his father with the help of a villager at Kesalingayapalli village then father of the boy has taken the boy to his village and on the next day a report was lodged before the police. 34. As per the statement of the father (PW-1) the accused have called the PW-1 and at about 2-00 p.m. and stated that the boy was in their custody and demanded an amount of Rs.12 lakhs for release of the boy. 35. 34. As per the statement of the father (PW-1) the accused have called the PW-1 and at about 2-00 p.m. and stated that the boy was in their custody and demanded an amount of Rs.12 lakhs for release of the boy. 35. There is inconsistency in the evidence of both father and boy. The boy said the accused have pretended as if they have made phone call to father of the boy and in fact they have not called and he suspected and escaped from the accused and father says that the accused have called and demanded money. In order to overcome the said inconsistent evidence, the prosecution has not collected any data from the service provider to prove the demand by the accused whether such demand is a demand simplicities or demand for ransom. 36. There is no verification of the sim cards of the accused. The names of sim card holders in the cell phones were not collected by the prosecution. The prosecution has failed to produce any evidence from the operators with regard to the registration of the aforesaid phone numbers. The police are aware as to who are the subscribers of those cell phones. 37. That the 15-digit IMEI number for the cell phone was not recorded, to say that the said cell phone belong to the accused containing the SIM with mobile number mentioned in the seizure memo. There is no evidence to prove from which number the ransom call was allegedly made to PW1 (father of the boy). 38. PW2 (Boy) has not stated that calls were made to his father on the date of incident as per the testimony of PW2. The certificate under Section 65B of the Indian Evidence Act, 1872, for the call detail records was not furnished. 39. Further, the material objects, viz., Nokia phone and Motor Bike, do not have any bearing on the case itself. The Nokia phone was recovered from Accused No. 1 and it is not the case that it was used for the commission of crime and no evidence has been adduced or produced by the prosecution as to how these objects have a bearing on the case. 40. The Nokia phone was recovered from Accused No. 1 and it is not the case that it was used for the commission of crime and no evidence has been adduced or produced by the prosecution as to how these objects have a bearing on the case. 40. As per the ingredients of Section 364A I.P.C., the prosecution has 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 of ransom: As per the testimony of PW2 the boy there is no such demand made by the accused except the statement/testimony of PW1 there is no other evidence and there is coherence in between the statements of PW1 and PW2 regarding demand of ransom. To attract Section 364A IPC there should be demand for ransom. There is no cogent evidence to show that PW2 was taken for ransom. 41. The main thing to be seen is whether those inconsistencies, etc., go to the root of the matter or pertain to insignificant aspects thereof. In the circumstances of the case the court has to form its opinion about the credibility of the witness and record a finding as to whether deposition of PW2 inspires confidence. 42. In view of the above discussion, the trial Court has wrongly relied on the confessional statements made by the accused, which are inadmissible in evidence, and there is no such discovery of any new fact and the prosecution has failed to obtain any information from the service providers to show that the accused have made call to P.W.1, who is the father of the boy, for ransom and there is no independent evidence to that effect. 43. Even the boy has not identified the accused at first instance in the test identification parade conducted in the presence of P.W.7-II Additional Judicial Magistrate of the First Class, Kadapa. As there is no independent corroborative evidence which fortifies to come to conclusion that there was any kidnap/abduction or demand for ransom with threat to cause the death of the boy. 44. As there is no independent corroborative evidence which fortifies to come to conclusion that there was any kidnap/abduction or demand for ransom with threat to cause the death of the boy. 44. In the result, the Criminal Appeals are allowed and the judgment of conviction and sentence recorded against the appellants-A1 to A3 in Sessions Case No. 13 of 2014 on the file of the II Additional Sessions Judge, Kadapa, dated 17.11.2016, is hereby set aside and consequently, the appellants-A1 to A3 are acquitted for the offence under Section 364A r/w 34 I.P.C. The appellants herein shall be set at liberty forthwith unless they are required in any other case. The fine amount imposed by the trial Court paid by the appellants herein shall be returned to them. The Registry is directed to return the trial Court record with a copy of this judgment. 45. As a sequel, miscellaneous petitions, if any, pending in these cases, shall stand closed.