(Prayer: This Crl.A. is filed u/s.374(2) Cr.P.C praying to set aside the Order Dated:22.3.12 passed by the I Addl.District and Sessions Judge, Bangalore Rural District, Bangalore in S.C.No.172/11-convicting the Appellants/Accused for the offence P/U/S.364-A r/w Sec.34 of IPC; the Appellants/Accused sentenced to undergo imprisonment for life and to pay fine of Rs.10,000/-(Rupees Ten Thousand Only) each. in default to pay the fine, each of the accused shall further undergo RI for a Period of 2 Years.)
1. Four accused persons who are convicted and sentenced to life imprisonment and a fine of Rs.10,000/- each for the offence punishable under section 364A r/w Section 34 Indian Penal Code are before this Court challenging the judgment of conviction and order of sentence dated 22.3.2012/19.4.2012 in S.C.No.172/2011 on the file of the I Addl. District and Sessions Judge, Bengaluru Rural District, Bengaluru.
2. The facts leading to the appeal as unfolded during trial are that:-
The complainant- Abdul Rehman Sharieff-(PW-1) had five brothers and one sister. His youngest brother Murabak Sharieff was a mentally challenged person. The family of the complainant were running a beedi factory and a granite polishing industry and they were also involved in agriculture. Earlier they were running a cement brick factory. Accused No.1 was working in the brick factory of the complainant for about four years. About one year earlier to the incident, he left the job. Accused No.2 Rajendra Reddy worked under the complainant for about nine months and accused No.3- Subramani was employed by them to watch the mango groove about five years earlier to the incident. Accused No.4- Yashodhara also worked under them for about four months. All the accused were residents of Palamaner Taluk, Chittoor District, Andhra Pradesh.
3. On 19.02.2011, PW-1 lodged a complaint in Hosakote Police Station as per Ex-P21 alleging that his youngest brother Mubarak Sheriff has gone missing since the morning of 18.02.2011. Based on this complaint, PW-7 the PSI of Hoskote Police Station registered a missing case. In the said missing complaint, the complainant having suspected the involvement of Balappa, he was secured by the police and on interrogation, PW-7 having ascertained that said Balappa was not involved in the missing of the brother of the complainant, the enquiry on the missing complaint was kept in progress.
4. On 22.02.2011, PW-1 lodged another complaint (Ex- P1) alleging that on 21.2.2011 at about 3.11 p.m., the father of the complainant Sri. Abdul Khader received a phone call to his mobile No.9901162770 from mobile No.8582252207. The caller was talking in Telugu language and he told the father of the complainant that Mubarak Sheriff, the brother of the complainant was in their custody and he would be released only on payment of Rs.20.00 lakhs. In the complaint, it was alleged that the father of the complainant expressed his inability to pay the said huge amount and assured to arrange the money by the next day after discussing with his sons. On 21.2.2011, once again the father of the complainant received a call from the very same person, but from a different mobile phone bearing No.8582252053 enquiring as to whether the demanded ransom has been arranged or not. In view of this complaint, PW-7 incorporated Section 364-A Indian Penal Code in the FIR and the further investigation was continued by the Circle Inspector, Hoskote Circle viz., PW-8. During the investigation, PW-8 arrested accused No.1 on 02.03.2011 at Palamaner Government Bus Stand and on the basis of the voluntary statement made by accused No.1, traced the brother of the complainant viz., Mubarak Sheriff in Gantaooru colony, Palamaner. He was being kept under watch by accused Nos.2 and 3 in a building under construction. Accused Nos.2 to 4 were also arrested and all the accused were brought to Hoskote Police Station. The mobile phones found in the possession of accused Nos.1, 2 and 3 were seized. During investigation, PW-8 collected the call details relating to the mobile phone used by accused Nos.1 to 3 and on completing the investigation, laid the charge sheet against all the above accused under Section 364-A Indian Penal Code.
5. The accused faced trial before the I Addl. District and Sessions Judge, Bengaluru Rural District. The learned Sessions Judge framed a common charge against all the accused. The accused having denied the charge, the prosecution examined eight witnesses and produced in evidence 32 documents marked as Ex-P1 to Ex-P32 and the material objects as M.Os.1 to 5 to bring home the guilt of the accused for the above offence. On consideration of the said evidence and on hearing the learned Addl. State Public Prosecutor and the defence counsel, by the impugned judgment, the court below found the accused guilty of the offences punishable under section 364-A r/w Section 34 Indian Penal Code and sentenced them to life imprisonment and a fine of Rs.10,000/- each.
6. We have heard the learned counsel appearing for the appellants/accused and the learned Addl. State Public Prosecutor who have taken us through the records of the Lower Court and the impugned judgment.
7. Among the eight witnesses examined by the prosecution, PW-1 is the complainant and PW-2 is the younger brother of the complainant. Both these witnesses have deposed about the family business and the employment of the accused persons in their brick factory at different point of time as narrated above. Further these witnesses have specifically stated that their younger brother Mubarak Sheriff was a mentally challenged person and he was missing since the morning of 18.2.2011. According to PWs-1 and 2, a missing complaint was lodged on 19.2.2011 and when they were searching for their missing brother, on 22.2.2011, their father received anonymous call from mobile No.8582252207 demanding a ransom of Rs.20.00 lakhs for the release of their brother, which prompted the complainant to lodge a complaint on 22.2.2011. These witnesses have further stated that accused No.1 was apprehended on 2.3.2011 in Palamaner bus stand and PW-1 immediately identified accused No.1 as he was working in their brick factory for about four years. PW-1 has further stated that pursuant to the voluntary statement made by accused No.1, he led PW-1 and the panchas and the police to Gantaooru colony about 1 kms from Palamaner bus stand and showed the place where Mubarak Shariff was kept under the watch of accused Nos.2 and 4.
PW-3 Jayarama is an independent witness who has stated that on 17.2.2011, accused No.1 had come to Hoskote and at that time, he paid Rs.500/- to accused No.1 through PW-4 Syed Imthiyaz for procuring labourers to watch the mango groove of the father of PW-1. This witness has further deposed that on 18.2.2011 at about 11.00 a.m., he saw accused No.1 talking with Mubarak Sheriff and on the same day evening he came to know about the missing of Mubarak Sheriff.
PW-4 Syed Imthiyaz is one of the labourer working in the beedi factory of PW-1. This witness has also deposed that on 18.2.2011, he saw accused No.1 near the house of PW-1 and on the same day, he came to know about the missing of Mubarak Sheriff.
PW-5 Suhel is a tempo driver. According to PW-5, on 22.2.2011, he was asked to identify the person who was with Mubarak Sheriff and he identified the said person as Balappa.
PW-6, Abdul Maqsith is the panch witness to mahazar Ex-P3 and Ex-P17. According to this witness, after the arrest of accused No.1 in Palamaner bus stand, accused No.1 gave his voluntary statement and led PW-6 and another panch witness and the police to a building which was under construction, where they found Mubarak Sheriff kept under watch by accused Nos.2 to 4. This witness also has spoken about the mahazar prepared by the police as per Ex-P17 relating to the seizures of the mobiles produced by accused Nos.1 to 3 and he has identified these mobile phones as M.O. Nos.1 to 4. He is also a witness to the mahazar Ex-P20, wherein, accused No.1 is stated to have shown the place from where Mubarak Sheriff was abducted is recorded.
PW-7 was the PSI of Hoskote Police Station, who received the missing complaint and registered the FIR and on receipt of the further complaint from PW-1 as per Ex-P1, incorporated Section 364-A by making necessary application to the Magistrate. According to this witness, he accompanied the Investigating Officer to Palamaner on 2.3.2011 and was a witness to the voluntary statement made by accused No.1 and consequent tracing of Mubarak Sheriff in the building under construction in Gantaooru colony, Palamaner.
PW-8- the Circle Inspector of Hoskote Circle is the Investigating Officer.
8. On analyzing the evidence of the above witnesses, the Trial Court has come to the conclusion that the evidence of PW-2, PW-3 and PW-4 establishes that accused No.1 had come over to Hoskote on 17.2.2011 and left Hoskote only on 18.2.2011. Further, the learned Sessions Judge has held that through the evidence of PW-6 an independent witness, the prosecution has established that accused No.1 was arrested at Palamaner bus stand and on the basis of his voluntary statement, the brother of PW-1 viz., Mubarak Sheriff was traced. The Trial Court has held that the evidence of PW-8 finds support in the evidence of PWs-1 to 6 and establishes beyond reasonable doubt that accused having kidnapped Mubarak Sheriff from Hoskote brought him to Palamaner with a sole intention of demanding the ransom. Further, placing reliance on the call details report at Ex-P32, the Trial Court has recorded a finding that the prosecution has established that it was accused who were making calls for ransom to the cell phone of Abdul Khader and consequently, the Trial Court held all the accused guilty of the offence punishable under section 364-A r/w Section 34 Indian Penal Code.
9. In their argument, learned counsel for the appellants have emphatically submitted that the findings recorded by the Lower Court are not based on any legal evidence. It is the submission of the learned counsel that the witnesses examined by the prosecution though have stated that accused No.1 was seen in Hoskote on 17.2.2011 and 18.2.2011, there is absolutely no evidence whatsoever to show that accused No.1 had abducted Mubarak Sheriff- the brother of the complainant. Referring to Sections 364-A and 362 Indian Penal Code, learned counsel emphasized that none of the ingredients of the said sections are proved by the prosecution. The victim has not been examined before the Court to prove the manner of the alleged abduction. Further, the arrest of accused No.1 at Palamaner bus stand is also surrounded by suspicious circumstances, in as much as, the prosecution has not examined any local witness to prove the arrest of accused No.1 or to prove the discovery alleged to have been made at the instance of accused No.1. The owner of the building under construction or the adjacent occupants of the said building are not examined or cited as witnesses to state that the victim was found in the said building under the watch of accused Nos.2 to 4 as contended by the prosecution. The photographer, who is stated to have taken the photographs at the time of the alleged discovery of Mubarak Sheriff is also not examined and in none of these photographs either the accused or the Mubarak Sheriff are seen, leading to doubt the genuineness of these photographs. It is the submission of the learned counsel that even if these photographs are admitted in evidence, they do not connect the accused to the alleged offence nor do they establish the involvement of accused in the alleged abduction.
10. The learned counsel further submitted that the demand for ransom is also not proved by the prosecution. It is the submission of the learned counsel that according to the prosecution, the demand for ransom was made to the father of the complainant, but the father of the complainant has neither lodged any complaint nor the Investigating Officer has recorded his statement. Even though it is stated that he died within 10 days from the alleged disappearance of Mubarak Sheriff, there is no explanation by the prosecution for non- recording the statement of the father of the complainant which is fatal to the case of the prosecution. Further, it is submission of the learned counsel that the identity of the caller has not been established and therefore merely on the basis of the call records, the Trial Court could not have come to the conclusion that the accused demanded the ransom. The learned counsel pointed out that there is no clear finding by the Trial Court on the ingredients of the offences charged against the accused. The Trial Court has framed a omnibus charge against all the accused without attributing any overt acts individually to the accused. There is no worthwhile evidence to show prior concert or common intention between the accused. There is no material whatsoever to show that accused Nos.2 to 4 were either involved in the abduction or in the alleged demand of ransom. It is the submission of the learned counsel that even if the evidence of the prosecution is accepted, the presence of accused Nos.2 to 4 at the most would make out a case under Section 341 of Indian Penal Code and by no stretch of imagination, accused Nos.2 to 4 could be convicted for the alleged offence punishable under section 364-A Indian Penal Code. The learned counsel emphasized that the charge framed against the accused is vague and no witnesses have been examined to prove the common intention and therefore, the Trial Court was not justified in recording the conviction against all the accused for the alleged offence under Section 364 IPC.
11. The learned Addl. State Public Prosecutor however has sought to justify the impugned order and would submit that the prosecution having proved that accused No.1 was last seen with Mubarak Sheriff at Hoskote on 18.1.2011 and on the basis of the voluntary statement of accused No.1, he having been traced, and the prosecution having proved that, accused No.1 himself called up to the phone of Abdul Khader, the father of the complainant demanding a ransom of Rs.20.00 lakhs for the release of Mubarak Sheriff, the conviction of the accused is well founded and do not call for any interference by this Court.
12. We have bestowed our careful thoughts to the arguments advanced on either side and have carefully scrutinized the oral and documentary evidence.
13. In the light of the contentions urged in the appeal, the point that arise for consideration is:-
"Whether the evidence produced by the prosecution establishes the ingredients of the offence charged against the accused under Section 364-A Indian Penal Code?."
14. Section 364-A deals with kidnap for ransom etc.,. The section 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."
15. To attract the provision of Section 364-A, the prosecution is required to prove the following:-
i. That the accused kidnapped or abducted a person; and ii. Kept him under detention after such kidnap or abduction; and iii. That the kidnap or abduction was for ransom.
16. In the instant case, the specific accusations against the accused are that accused persons abducted the brother of PW-1 from Hoskote, kept him under detention in Palamaner and demanded ransom for his release.
Abduction:-
Abduction is defined in Section 362 of Indian Penal Code. This section envisages two types of abduction i.e.,
i) Abduction by force or compulsion and/or
ii). Abduction by deceitful means.
Further, as per the above section, the object of such compulsion or inducement should be going of the victim from any place.
17. In order to prove abduction, the prosecution has relied mainly on the evidence of PW-3 and PW-4. As already stated above, PW-3 has deposed before the Court that he met accused No.1 on 17.2.2011 and at that time, he asked accused No.1 to arrange for some labourers to work in the mango groove of Abdul Khader. He has further stated that for this purpose, he asked Syed Imithiyaz to pay Rs.500/- to accused No.1. Further, PW-3 has stated that on 18.2.2011 at about 11.00 a.m., he saw accused No.1 talking with Mubarak Sheriff and at that time, he asked accused No.1 to immediately go back to the village and arrange for the labourers and on the same day, he came to know that Mubarak Sheriff was missing. PW-4 has also deposed in line with PW-3 stating that on 18.2.2011 he saw accused No.1 talking with Mubarak Sheriff near the house of PW-1.
18. Undisputedly, PW-4 was a labourer working in the beedi factory of PW-1 and PW-3 was the immediate neighbourer of PW-1. Though the statement of these witnesses that they saw accused No.1 talking with Mubarak Sheriff on 18.2.2011 has not been discredited in the cross- examination, yet, on careful evaluation of the entire material on record and the circumstances brought out in the evidence of the prosecution witnesses, we find that both these witnesses are false witnesses and their evidence is trumped up by the prosecution to bolster up the charge against the accused. Reasons are obvious. As already pointed out, a missing complaint was lodged by PW-1 on 19.2.2011. In this complaint, it is clearly stated that the brother of the complainant viz., Mubarak Sheriff was missing since the morning of 18.2.2011 and when the complainant and his family members were searching for him, they were told that he was seen going with one Balappa. PW-7 the Police Inspector who registered the missing complaint has unequivocally stated before the Court that said Balappa was secured by the police on 22.2.2011 and it was ascertained that he was not involved in the missing of Mubarak Sheriff. If infact, PW-3 and PW-4 had seen accused No.1 talking with the aforesaid Mubarak Sheriff at about 11.00 a.m. on 18.2.2011 and in the evening itself they came to know that he was missing, in all likelihood, they would have informed this fact to PW-1 and the name of accused No.1 would have been shown as the suspect in the missing of Mubarak Sheriff at the earliest instance. This is one of the strong circumstance impeaching the credibility of the statements made by PW-3 and PW-4 that they saw accused No.1 with Mubarak Sheriff on 18.2.2011.
19. Secondly, it has come in evidence that during the investigation of the missing complaint, the Investigating Officer enquired the labourers working in the brick factory of PW-1, meaning thereby that PW-4 was also enquired by the Investigating Officer. But, the Investigating Officer has admitted in his evidence that until the arrest of accused No.1 and his identification by PW-1, not a single witness had stated before him that they had seen the aforesaid Mubarak Sheriff in the company of accused No.1 or any other accused making it evident that PW-3 and PW-4 are propped up only after the arrest of accused No.1 so as to create evidence of the circumstance of the victim last seen in the company of the accused. This is another reason for disbelieving the testimony of PW-3 and PW-4 that they had seen the aforesaid Mubarak Sheriff in the company of accused No.1.
20. Another important factor which militates against the case of the prosecution in proving the complicity of the accused in the alleged abduction of Mubarak Sheriff is the non-examination of the victim of the alleged abduction. As already pointed out, Section 362 of Indian Penal Code envisages two types of abduction viz., i) abduction by force or compulsion and/or ii) abduction by deceitful means. In the instant case, there is absolutely no evidence to show as to how and in what manner the victim was abducted. Undoubtedly, the victim of the offence would have been the best and the competent witness to speak about the manner of alleged abduction and whether he was abducted by force or by inducement or by deceitful means. It is not the case of the prosecution that the victim of the offence was incompetent to depose before the Court. Though in the missing complaint and in the complaint lodged on 22.2.2011 Ex-P1, it is stated that the brother of the complainant was mentally challenged person, there is nothing on record to show that he was not in a position to give evidence before the Court.
21. Section 118 of the Evidence Act lays downs that 'All persons shall be competent to testify unless the Court considers that they were prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind. The explanation to the said section provides that :-
"A lunatic is not incompetent to testify, unless he is prevented by his lunacy from understanding the questions put to him and giving rational answers to him."
22. In the instant case, there is not even an iota of evidence to show that the victim of the alleged abduction was a mentally challenged person. Except the interested testimony of PW-1 and PW-2, there is no material to show that he was unable to testify before the Court of law. In the missing complaint Ex-P21, it is specifically stated that he could speak Urdu and Kannada language. The very fact that the prosecution has kept him out of the witness box, an adverse inference has to be drawn against the prosecution.
23. When it is the case of the prosecution that the brother of PW-1 had gone missing and a case was registered for abduction, the Investigating Officer ought to have produced him before the Court or should have recorded the statement of the victim to ascertain the manner in which he was abducted and the persons responsible for his abduction. In appreciating this issue, it is also relevant to note that according to the prosecution, the victim was traced on 3.2.2011 nearly 15 days after his disappearance. It is not forthcoming in the evidence as to what was his condition at the time when he was traced, whether he was wearing the same clothes, where he was sheltered these 15 days and whether he was given any food. All these circumstances would have clinched in determining the question of abduction and the involvement of the real culprits. In the absence of any such evidence, merely on the basis of the evidence of PW-3 and PW-4, who are turned out to be totally unreliable and untrustworthy witnesses, the Trial Court was not justified in holding that the accused were instrumental in the abduction of the aforesaid Mubarak Sheriff. Therefore, the finding recorded by the Trial Court in this regard is liable to be set- aside.
Demand of ransom:-
24. According to the prosecution, the demand for ransom was made to the father of the complainant. In Ex-P1 complaint, it is specifically stated that an anonymous call was received by the father of the complainant to his mobile phone No.9901162770. Complaint is not lodged by the father of PW- 1 who is stated to have received the ransom call nor has the prosecution brought on record the statement of the father of PW-1, as such, there is no direct evidence in proof of demand of ransom. The only evidence available in proof of the alleged demand of ransom is the oral statements of PW-1 and PW-2. But their evidence cannot be ascribed any weight as it is an hear-say evidence. PW-1 and PW-2 have nowhere stated that any of the accused demanded ransom of Rs.20.00 lakhs from them. Therefore the evidence of PW-1 and 2 is of avail to the prosecution to prove the alleged demand of ransom.
25. PW-8 has deposed that during the investigation, he had retained the mobile phone to which the calls were made and has stated that four or five calls were received to the said phone demanding ransom. PW-8 has specifically deposed that those calls were received by his staff. Even those staff have not been examined to prove the alleged demand. As a result, there is no worthwhile evidence to prove the identity of the caller or the contents of the alleged calls.
26. The Trial Court has relied on the call details of the cell phone of deceased Abdul Khader at Ex-P32 and has held that these calls details establish that the accused had demanded ransom from the deceased Abdul Khader for release of his son Mubarak Sheriff. This conclusion in our opinion is far fetched and cannot be sustained. In this regard, it is relevant to note that even though PW-8 has stated that in the course of investigation, he collected the details of the calls made from the mobile number seized from accused Nos.1 to 3, the prosecution has not established that any of these calls were made by the accused to the father of PW-1. The reading of the complaint Ex-P1 itself suggests that the identity of the caller was not known either to the father of PW-1 or to PW-1 and no efforts have been made by the prosecution to establish the identity of the caller. The voice of the caller has not been identified. The persons who received the calls from the mobile phones of accused viz., M.Os.1 to 3 and M.O.5 are not examined. The calls sheet details Ex-P32 do not lead to the inference that the calls were made by the accused demanding ransom. Viewed from any angle, there is no reliable and acceptable evidence in proof of the fact that the accused demanded ransom for release of Mubarak Sheriff as contended by the prosecution. Therefore the findings recorded by the Trial Court in this regard also cannot be sustained.
27. In the light of the above conclusions, we hold that the prosecution has failed to prove the essential ingredients of the offence charged against the accused. The prosecution has failed to prove its case beyond reasonable doubt by cogent and convincing evidence. Therefore the Trial Court was not justified in convicting the appellants for the alleged offence punishable under section 364-A of Indian Penal Code. The Trial Court failed to appreciate the evidence on record in proper perspective and has erred in applying proper legal principles to the facts of the case. Therefore, the impugned judgment and order cannot be sustained in law. Detention:-
28. Even though we have come to the conclusion that the prosecution has failed to prove the offence punishable under section 364-A of Indian Penal Code, yet, in our opinion the evidence produced by the prosecution is sufficient to establish the fact that on 3.2.2011, accused No.1 was arrested at Palamaner and at the instance of accused No.1, the Investigating Officer traced Mubarak Sheriff. Though the learned counsel for the accused have pointed out serious infirmities in the alleged arrest of accused No.1, as the prosecution has not been able to show that the Investigating Officer had drawn up any mahazar at the place of arrest and no independent witnesses from the locality have been examined in proof of the alleged arrest, yet the fact that pursuant to the arrest of accused No.1, Mubarak Sheriff the brother of PW-1 was found in Gantaooru colony under the watch of accused Nos.2 to 4 in a building under construction has not been falsified by the defence. Therefore to this extent, it has to be held that the prosecution has proved that on 3.2.2011, the victim was found in the confinement of the accused.
29. Though it is argued by the learned counsel for the accused that the photographs produced by the prosecution at Exs-P4 to P15 do not show the presence of either the victim or the accused and the prosecution has not examined any local witnesses to show that the victim was found in the said house, and that it is highly improbable that the victim could have been kept in such an open place for 15 days, yet the facts noted in Ex.P3 mahazar, coupled with the evidence of PW.1, PW.6, PW.7 and PW.8 lead to the inevitable conclusion that the victim was found in the wrongful confinement of the accused on 3.2.2011 rendering them liable for conviction for the lesser offence punishable under section 342 of Indian Penal Code and hence, we hold accused Nos.1 to 4 guilty of the offence punishable under section 342 of Indian Penal Code.
30. Accordingly, we pass the following order:- Criminal appeal is allowed. The impugned judgment and order passed by the I Addl. District and Sessions Judge, Bengaluru Rural District in S.C.No.172/2011 convicting the appellants/accused Nos.1 to 4 for the offence punishable under section 364-A is set-aside.
The appellants/accused Nos.1 to 4 are hereby convicted for the offence punishable under section 342 r/w Section 34 of Indian Penal Code and are sentenced to undergo simple imprisonment for a term of one year and a fine of Rs.1,000/- each.
The period of detention undergone by the appellants/accused Nos.1 to 4 either as under trial prisoners or pursuant to the conviction in S.C.No.172/2011 shall be given set off as per section 428 of Cr.P.C. In the event, appellants/accused Nos.1 to 4 have already served the above term of sentence, they shall be released forthwith, if not required in any other case.
I.A.1/16 and I.A.2/16 for suspension of sentence and bail do not survive for consideration and accordingly these I.As are rejected.
Registry is hereby directed to communicate the operative portion of this judgment to the concerned jail authorities forthwith to enable them to release the appellants/accused Nos.1 to 4.