We would however like to refer the judgment of the Hon'ble Supreme Court in case of Akram Khan v. State of West Bengal reported in MANU/SC/1470/2011 : 2012(1) SCC 406.
"28) In Malleshi vs. State of Karnataka, MANU/SC/0758/2004 : (2004) 8 SCC 95, while considering the ingredients of Section 364A IPC, this Court held as under:
12. To attract the provisions of Section 364-A 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.....To pay a ransom, as stated in the above referred Section, in the ordinary sense means to pay the price or demand for ransom. This would show that the demand has to be communicated.
29) We have already pointed out the evidence of PW-3 that he had received 8 or 9 calls from the accused persons demanding ransom for release of his son and the evidence of PW-7, an employee of a public telephone booth, also corroborates with the evidence of PW-3 who deposed that the calls were made on several occasions by the appellant from the telephone booth and on 2 or 3 occasions along with the child.
30) In Vinod vs. State of Haryana, MANU/SC/7005/2008 : AIR 2008 SC 1142, while reiterating the principles enunciated in Malleshi (supra), this Court accepted the case of the prosecution and confirmed the conviction and sentence of life imprisonment imposed under Section 364A IPC.
31) Though learned counsel for the appellant submitted that the case falls only under Section 363, namely, mere kidnapping and not under Section 364A i.e., Kidnapping for ransom, in the light of the acceptable evidence led in by the prosecution, relied on and accepted by the trial Court and the High Court, we reject the said contention.
27. It is not necessary for the prosecution to establish the offence u/s. 364-A of IPC that the abductors have actually extort some ransom and in not fulfilling the demand of ransom the abductee had been resulted in death. But the prosecution has to prove that the abductee was kept in detention and threatened to cause death or hurt in order to extort ransom and communicates that demand for ransom.
28. In the present case the prosecution has proved all the three ingredients of section 364-A of IPC which are enunciated in Malleshi's case. Thus the submissions of learned counsel for the appellants has no force that the case falls under 365 of IPC and not under section 364A of IPC.
Citation: 2015CriLJ1418, 2015(1)JLJ134
IN THE HIGH COURT OF MADHYA PRADESH (INDORE BENCH)
DIVISION BENCH
DIVISION BENCH
Criminal Appeal No. 138 of 2008
Decided On: 05.01.2015
Balindar Kumar
Vs.
State of Madhya Pradesh
Vs.
State of Madhya Pradesh
Coram:Shantanu Kemkar and J.K. Jain, JJ.
1. The appellants by preferring the appeal under Section 374 of the Code of Criminal Procedure [for short "the Code"] assailed the legality and validity of their conviction under Section 364A read with Section 120-B of the IPC and consequent sentences of imprisonment for life and a fine of Rs. 500-00 with default clause passed on 18.12.2007 by 20th ASJ (Fast Track Court), Indore in S.T. No. 212/2005.
2. Briefly stated the prosecution case as unfolded before the Trial Court is that on 16.12.2004 Kailash Baheti (60 years) a businessman of Indore City left his residence for morning walk at 4.30 AM. It was stated that normally he returns back at home around 7.00 AM, but on the date of incident he did not return. Then around 7.30 AM his sons Sanjay and Vipin got worried about him and made enquiries. They found that their father's car was parked near Zanjeerwala Chouraha. Both the sons tried their best but they could not gather any positive information about their father. Thereafter Vipin went to Police Station Tukoganj, Indore and lodged the missing report of his father which was registered as Gumshudgi No. 29/2004. On the same date, Sanjay received a call on his mobile-phone from an unknown person who introduced himself as Raja. Raja told him that his father (Kailash Baheti) is abducted and is in his possession and Rs. 5 crores be kept ready to pay as ransom. Sanjay informed the police about the telephonic call which he has received on his mobile-phone. Thereafter police registered a case under Sections 364, 365, 368 and 120-B of the IPC against unknown persons and started investigation. Mobile-phones of Vipin, Sanjay and land line phone of their residence were kept on surveillance and the conversations were recorded. It was found that on each communication, the abductors used different sim cards. Sanjay (son) and Santosh (son-in-law) negotiated with the abductors whereupon they agreed to accept Rs. one crore as ransom. The abductors asked Sanjay to come to Nagpur with Rs. one crore. Sanjay, Santosh and Radheyshyam reached Nagpur whereupon Sanjay received the message to come at Kolkata. Then they started by train for Kolkata. In the middle of journey Sanjay again got the message to get down at Bilaspur so as to deliver the ransom between Bilaspur and Nagpur. That as per the instructions of the abductors Sanjay and others got down at Bilaspur and started waiting for further instructions of the abductors, in the meanwhile, they got the information that Kailash Baheti has been released and he has reached to Nagpur.
3. Meanwhile Indore police sent the information to neighboring States and requested them for apprehending the culprits. After lapse of a month, on 17.01.2005, during checking at Dharseema, District Raipur (C.G.) appellant Balvinder Singh, Khalid, Santosh Singh and Shailendra were arrested under Section 41(2) of the Code, but Gopal Tiwari escaped. Gopal Tiwari @ Baba informed the appellant Sajid Ansari that police can arrest him at any time, therefore, he must release Kailash Baheti immediately. Thereafter Kailash Baheti was released in the forest between Wardha to Nagpur. Somehow Kailash Baheti reached Nagpur, then with the help of police he reached at Indore.
4. Kailash Baheti stated to Police that on 16.12.2004 at about 4.30 AM he left his residence for morning walk. He stated that he parked his car near Zanjeerwala Chouraha and started walking. There he saw a man coming out of a Bolero car. The said man asked him about the location of some person's residence. Before he could reply, 7-8 persons surrounded him and he was pushed into the car and was taken away. The abductors tied a strip of cloth on his eyes and after travelling a long distance he was kept in a flat where the windows were covered by ply so he cannot see outside the flat. The abductors kept him as a hostage in that flat [No. 3, Rupali Apartment, Laxmi Nagar Wardha, (M.S.)] for about a month. During that period he under coercion wrote some letters to his sons for paying ransom to the abductors.
5. During investigation Kailash Baheti stated that he knew one of the accused Mukesh (since acquitted) who earlier worked as his driver. He identified the accused persons (appellants) in test identification parade. During further investigation, a revolver with cartridges, mobile Phones and a car was recovered from possession of the appellants. At the instance of appellants, application forms and other documents were recovered from the shopkeepers who sold the sim cards to the appellants. Call details were also collected from the concerned Service Providers. Voice samples of the appellants were sent to FSL Delhi and the documents were sent for examination to Government handwriting expert. After completing the investigation, final report was filed against appellants-herein and Ajay and Mukesh, in the Court of JMFC, Indore. The case was committed to the Court of Sessions, Indore. Then it was made over to 20th ASJ Indore for trial.
6. After hearing the parties and considering the material, learned ASJ framed charges against appellants under Sections 364-A r/w 120-B of the IPC. Appellants abjured their guilt. They pleaded false implication.
7. For proving the charge, prosecution examined as many as 56 witnesses. Prosecution also relied upon 191 exhibits and 31 articles. After completing the statement of prosecution witnesses, appellants were examined under Section 313 of the Code. They did not produce any witness in their defence. Defence relied upon 7 exhibits.
8. After hearing learned counsel for both the parties, learned ASJ recorded the conviction against Balvinder, Khalid, Sajid, Shailendra and Santosh under Section 364-A r/w 120-B of the IPC; whereas charges against Ajay and Mukesh were not proved, therefore, they were acquitted from these charges. Against the conviction and sentence, appellants have preferred this appeal.
9. We have heard Shri Avinash Sirpurkar, learned counsel for the appellants and Shri R.S. Parmar, learned Panel Lawyer for the Respondent/State.
10. Learned counsel for the appellants submitted that no case has been made out against the appellants for an offence punishable u/s. 364-A of IPC in as much as ingredients of section 364-A of IPC has not been established by the prosecution. There is no evidence that the appellants have caused any injury or have administered any threat of death to Kailash Baheti. The prosecution has not produced any recording/transcription or any document in regard to demand of ransom for release of Kailash Baheti. On the other hand the appellants have provided him food and essential medicines and when he was released, appellants gave him some of Rs. 500/- for his travelling expenses. There is no evidence that the appellants have demanded any ransom or procured any amount as ransom. From these facts it can be seen that at most the act of the appellants comes under the purview of section 365 IPC for which the maximum punishment provided is 7 years and in as much as the appellants have already served about 10 years of sentence therefore, the appeal be allowed and the appellants be released. For this purpose, he relied upon the judgment of this Court in the case of Shahid Khan v/s. State of M.P. [MANU/MP/2518/2013 : 2013. Cr. L.R. (MP) 763].
11. Learned counsel for appellants cited the judgment of Apex court in the case Vishwnath Gupta vs. State of Uttaranchal MANU/SC/1930/2007 : (2007) 11 SCC 633 and submitted that there are three stages in Section 364-A IPC, one is the kidnapping or abduction, second is threat of death coupled with demand of money and lastly when the demand is not met, then causing death. If the three ingredients are available, that will constitute the offence under Section 364-A IPC. In the present case prosecution has failed to prove these three stages of the offence. Therefore the conviction of the appellants u/s. 364-A r/w 120-B IPC is liable to be set aside.
12. On the other hand, learned Panel Lawyer submitted that from the evidence of abductee Kailash Baheti, his son Sanjay, son-in-law Santosh Muchhal and Radheyshyam it is proved that Kailash Baheti was abducted for ransom of Rs. 5 crores. After negotiations, the appellants were agreed to accept Rs. one crore as ransom. It is also proved that Kailash Baheti was taken away from Indore to Wardha and was kept as a hostage in the flat for about a month by the appellants. Thus it is evident that due to the conduct of the appellants a reasonable apprehension arose in the mind of Kailash Baheti that he may be put to death or caused a grievous hurt by the appellants. It reveals from the evidence that appellants had no other intention except to extort the ransom. The facts of Shahid Khan's case (supra) are different, in that case an eye witness of a murder case, was abducted to create pressure on him that if he would give evidence against the accused persons of that murder case, then he may be put to death. Therefore, this judgment will not be helpful to the appellants. It was therefore submitted that the appeal deserves to be dismissed by confirming the order of conviction and sentence passed by the Trial Court.
13. We have given our anxious and most thoughtful consideration to the rival submissions of both the sides. We have also perused the judgment of trial court and have minutely gone through the evidence on record.
14. In so far as abduction of Kailash Baheti is concerned, it has been clearly established and cogently proved by the prosecution evidence that Kailash Baheti was abducted on 16.12.2004 at about 4.30 AM when he was on morning walk and was taken from Indore to Wardha and was kept in a flat for 32 days. For this purpose learned ASJ was right in relying upon the testimony of victim Kailash Baheti (PW-1) his son Sanjay Baheti (PW-17), his Son-in-law Santosh Muchhal (PW-42) and Radheyshyam Sharda (PW-46) and it is further corroborated by prompt FIR (Ex-P-146). We saw no infirmity in the prosecution evidence nor in the findings recorded by the trial court in regard to abduction of Kailash Baheti.
15. Now it has to be seen that whether appellants were involved in the aforesaid abduction of Kailash Baheti? Kailash Baheti deposed that he was abducted by the appellants on 16.12.2004 and he remained with the abductors until 17.1.2005 i.e. for 32 days. During Test Identification Parade he identified the appellants. His evidence is natural and inspires confidence. Learned Counsel for the appellants has not challenged this finding that the appellants abducted Kailash Baheti. Thus it is proved beyond doubt that the appellants hatched a conspiracy and abducted Kailash Baheti and took him from Indore to Wardha and was kept in a flat for 32 days.
16. Now, let us consider whether the prosecution has established its case for the offence punishable u/s. 364-A of IPC beyond reasonable doubt. If it is established that offender after kidnapping/abducting a person keeps him in detention and threatened to cause death or hurt in order to extort ransom and communicates that demand, he is guilty for kidnapping for ransom.
17. It is not necessary to deal with the statements of all the witnesses insofar as the instant controversy is concerned. It would be necessary to refer to the statements of a few witnesses so as to deal with the submissions advanced on behalf of the appellants.
18. Firstly we have considered that whether any threat to cause death or hurt was administered by the appellants to the victim Kailash Baheti and/or his sons? For this purpose we would refer some portion of the statement of Kailash Baheti (PW-1) who deposed that-
From these facts it is clear that the appellants have threatened to cause death or hurt to Kailash Baheti in order to extort ransom. Thus, there is no force in the argument of the learned counsel for the appellants that the appellants have not administered any threat to cause death or hurt to Kailash Baheti.
19. Now we have considered that whether the appellants have demanded ransom of Rs. 5 crores for releasing Kailash Baheti? For this purpose the statements of Kailash Baheti, his son Sanjay and son-in-law Santosh and one Radheyshyam would be useful.
20. Kailash Baheti also stated that under coercion he has to write letters [Ex-P/1, P/2 & P/33] to his son. These letters are as under:-
Exhibit - P/1
(1) Brij Mohanji
(2) Narayandasji
(3) Hemant Neema
(4) Guddu Lunawat
(5) Radheshyamji
(6) Indorilalji
(7) Tripathi
(8) Bhaktani
Exhibit-P/2
Exhibit-P/33
7.15 A.M.
24.12.04
Dear Sanjay,
Kindly settle & pay money otherwise I will be in trouble. Do not go to Police. They can do nothing, so many days have been passed.
I have given number of Santoshji, Radheshyamji, Satish Mehra for collecting money. Number of "My Car" Dealer of Maruti Bhopal & Kanpur also I have given. Kindly Depute Radheshyamji for this settlement.
My Blessings to all in house.
24-12-04
7.15 A.M.
21. It is true that these letters [Ex-P/1, P/2 & P/33] sent by Kailash Baheti and received by his Son Sanjay Baheti made no reference to any specific demand of the amount of ransom, however in these letters Kailash Baheti requested to arrange ransom amount for his release. His son Sanjay (PW-17) deposed that on a day after his father's abduction, he received a phone call from an unknown person who stated that your father is safe in our custody and he demanded Rs. 5 Crores. He further stated that after this telephonic conversation he received the letter by fax [Ex-P/33] and then Ex-P/1 & Ex-P/2 by courier. He further deposed that he was constantly in touch with the abductors on telephone. He also negotiated with the abductors and they were agreed to accept Rs. one Crore and as per their instructions he along with Santosh Muchhal (PW-42) and Radheyshyam (PW-46) went to Nagpur. After reaching Nagpur the abductors instructed them to reach Kolkata by Geetanjali Express but in between they were again directed to get down at Bilaspur, however they did not deliver the ransom amount as they received a message from the police officer that the abductors have been caught and their father is safe. All these aforesaid facts have been corroborated by Santosh Muchhal (PW-42) and Radheyshyam (PW-46). It is seen that the testimonies of these witnesses remained unshaken in the cross-examination.
22. In such circumstances there is no force in contention of the learned counsel for the appellants that there was no demand of ransom by the appellants. It is also to be seen that from the facts it is apparent that there was no other intention of the appellants except to extort ransom after abducting Kailash Baheti.
23. It was strenuously argued by the learned counsel of the appellants that no CD in regard to conversation of demand of ransom was produced by the prosecution, and neither any mobile phone or landline phone were seized from the appellants. In the considered opinion of this Court, it does not in any way adversely affect the prosecution, if otherwise the evidence of prosecution witnesses is reliable and the Court is satisfied as to the circumstances leading to the demand of ransom by the appellants.
24. At this juncture we considered the judgment of this Court in case of Shahid Khan (supra). In Shahid Khan's case Dinesh Chandravanshi an eye witness of murder case was abducted, to create pressure on him that if he would give the evidence against the accused persons of that murder case then he may be put to death. In that case there was no demand of ransom which is one of the essential ingredient for the offence u/s. 364-A of IPC whereas in the present case the appellants have abducted Kailash Baheti and they took him from Indore to Wardha and they kept him as a hostage in a flat at Wardha for 32 days. The appellants have demanded the ransom of Rs. 5 crore and after negotiation they agreed to accept ransom of Rs. one crore. From the conduct of the appellants it is proved that there was a reasonable apprehension that if the demand of ransom has not been fulfilled, Kailash Baheti would be put on death. Thus the Shahid Khan's judgment is not helpful to the appellants.
25. Now we have considered the judgment of Vishwanath Gupta (supra) which is heavily relied upon by the learned counsel of the appellants. Learned Counsel of the appellants tried to impress us that in Vishwanath Gupta's case Hon'ble Apex Court has held that there are three stages in Section 364-A of IPC. One is kidnapping or abduction, second is threat of death coupled with demand of money and lastly when the demand is not met then causing death. If these three ingredients are available, that will constitute an offence u/s. 364-A if IPC. We have considered this submission. In Vishwanath's case, the question before the Hon'ble Supreme Court was that when all the ingredients of the offence have not taken place at one place then which court had territorial jurisdiction to try the matter. The Hon'ble Supreme Court after elaborate discussion held that the offence u/s. 364-A of IPC has three stages and the trial could be conducted at any of the court in which any one stage of the offence is committed. In this judgment, the Hon'ble Supreme Court has nowhere held that unless the aforesaid three stages are completed, the offence under section 364-A of IPC would not be made out.
26. We would however like to refer the judgment of the Hon'ble Supreme Court in case of Akram Khan v. State of West Bengal reported in MANU/SC/1470/2011 : 2012(1) SCC 406.
"28) In Malleshi vs. State of Karnataka, MANU/SC/0758/2004 : (2004) 8 SCC 95, while considering the ingredients of Section 364A IPC, this Court held as under:
12. To attract the provisions of Section 364-A 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.....To pay a ransom, as stated in the above referred Section, in the ordinary sense means to pay the price or demand for ransom. This would show that the demand has to be communicated.
29) We have already pointed out the evidence of PW-3 that he had received 8 or 9 calls from the accused persons demanding ransom for release of his son and the evidence of PW-7, an employee of a public telephone booth, also corroborates with the evidence of PW-3 who deposed that the calls were made on several occasions by the appellant from the telephone booth and on 2 or 3 occasions along with the child.
30) In Vinod vs. State of Haryana, MANU/SC/7005/2008 : AIR 2008 SC 1142, while reiterating the principles enunciated in Malleshi (supra), this Court accepted the case of the prosecution and confirmed the conviction and sentence of life imprisonment imposed under Section 364A IPC.
31) Though learned counsel for the appellant submitted that the case falls only under Section 363, namely, mere kidnapping and not under Section 364A i.e., Kidnapping for ransom, in the light of the acceptable evidence led in by the prosecution, relied on and accepted by the trial Court and the High Court, we reject the said contention.
27. It is not necessary for the prosecution to establish the offence u/s. 364-A of IPC that the abductors have actually extort some ransom and in not fulfilling the demand of ransom the abductee had been resulted in death. But the prosecution has to prove that the abductee was kept in detention and threatened to cause death or hurt in order to extort ransom and communicates that demand for ransom.
28. In the present case the prosecution has proved all the three ingredients of section 364-A of IPC which are enunciated in Malleshi's case. Thus the submissions of learned counsel for the appellants has no force that the case falls under 365 of IPC and not under section 364A of IPC.
29. Now we have to consider as to whether the sentence imposed by the trial court is appropriate or not. The prosecution has proved beyond doubt that the appellants have committed offence punishable u/s. 364-A r/w 120-B IPC. The offence shall be punishable with death or imprisonment for life and shall be liable to fine. Learned trial court awarded the sentence of imprisonment for life and fine of Rs. 500/- with default clause. We are of the view that sentence passed by the learned ASJ is appropriate in the present facts and circumstances of this case.
30. From the above discussions, in our considered opinion the trial court has not committed any error in convicting the appellants for the offence as stated aforesaid. Consequently the appeal fails, conviction and sentence imposed by the trial court is maintained.
No comments:
Post a Comment