Damo Alias Damodar and Two Others Vs. State of Madhya Pradesh - Court Judgment

Excerpt:
indian penal code (ipc) - section 364a - kidnapping for ransom, etc. -- ramcharan ( appellant in cr.a. 6. appellants in criminal appeals no.295/03, 319/03 and 322/03 were charged by the court below for offence under section 364a ipc, whereas ramcharan (appellant in cr.a.no.374/03) was charged for offence under section 364a read with section 109 ipc. the prosecution, in order to prove its charges against the appellants, has examined total 16 witnesses and they are gangaram (pw 1), netram (pw 2), madanlal (pw 3), nathuram (pw 4), raghuveer (pw 5), radhakishan (pw 6), hakim singh (pw 7), sudhar singh (pw 8), budhram (pw 9), ashok sharma (pw 10), daya sagar singh (pw 11), kumari mamta shakya, naib tahsildar (pw 12) , r.s.kailasiya, naib tahsildar (pw 13), shri ram (pw 14), munish rajoriya investigating officer of the case (pw 15), and somsingh raghuvanshi (pw 16). the court below on the basis of the evidence of the witnesses named above, examined by the prosecution, convicted the appellants in criminal appeals no.295/03, 319/03 and 322/03 for offence under section 364a ipc whereas the appellant ramcharan in criminal appeal no.374/03 was convicted for offence under section 364a read with section 109 ipc. appellants, aggrieved by their conviction have preferred these appeals. according to them, conviction of the appellants for offence under section 364a or under section 364a read with section 109 ipc cannot be sustained. 1. all these four appeals are proposed to be decided by this common judgment as they all have been preferred by the convict persons in the same case against the same impugned judgment of the trial court dated 21 st april, 2003 in sessions trial case no.24/02. 2. there are total eight convict persons who have been convicted by the court below vide its impugned judgment, seven i.e. appellants in criminal appeals no.295/03,319/03 and 322/03 for offence under section 364a ipc and the eighth one namely ramcharan ( appellant in criminal appeal no.374/03) for offence under section 364a read with section 109 ipc. they all have been sentenced to undergo life imprisonment and fine of rs.1,000/- each. 3. as per the prosecution case, all the appellants, except appellant ramcharan were members of a gang who waylaid the members of the complainant party who also were 8-9 in number when they had gone to collect fire wood in sukhakho forest on the date of incident that took place around 5.30 p.m. on 2 nd january, 2001. as per further case of the prosecution, the dacoits who had waylaid the complainant party had taken alongwith them three persons of the complainant party namely gangaram (pw 1), netram (pw 2) and madan (pw 3) and detained them illegally for two months. three persons of the complainant party namely nathu ram (pw 4), raghuvir (pw 5) and budhram (pw 9) were tied with safis and left at the spot. three persons who were tied and left at the spot managed to free themselves and reached their respective houses around 12.00 mid-night on the same day, i.e. 2 nd january, 2001. the remaining three persons of the complainant party namely hakim (pw 7), sudhar singh (pw 8) and naresh ( not examined ) were also initially taken by the dacoits with them, but they somehow managed to escape from their clutches and reached their respective houses. the prosecution has stated in the challan that all the dacoits were armed with deadly weapons viz. rifles, guns, tega etc. 4. fir of the incident was registered with the police of police station subhashpura on the next day of the incident, i.e. on 3 rd january, 2001 on the complaint of nathuram (pw 4). names of the appellants being the accused persons are not disclosed in the fir. fir (ex.p/3) contains the description of four persons of the dacoit group and even the description with regard to remaining members of the dacoit group is not given in the fir. 5. appellants were arrested by the police in the case on different dates. ramcharan ( appellant in cr.a. no.374/03) was arrested on 16 th march, 2001 vide arrest memo ex.p/11; damodar and bhikaram alias bhikha ( appellant no.1 in cr.a.295/03 and sole appellant in cr.a.322/03) were arrested on 27 th august, 2001 vide arrest memo, exs.p/8 and p/9; mohan, siya alias siyaram, ramjilal and santaram (appellants in cr.a.319/03 and appellant no.2 in cr.a.295/03) were arrested on 2 nd december, 2001 vide arrest memo, exs.p/12,p/13, p/14 and p/15; and pratap ( appellant no.3 in cr.a.295/03) was arrested on 19 th january, 2002 vide arrest memo ex.p/16. one of the members of the dacoit group namely kamlesh alias bhagatji alias kamalsingh alias jagdish could not be apprehended and was declared a proclaimed offender after completing the necessary formalities against him. 6. appellants in criminal appeals no.295/03, 319/03 and 322/03 were charged by the court below for offence under section 364a ipc, whereas ramcharan (appellant in cr.a.no.374/03) was charged for offence under section 364a read with section 109 ipc. they all pleaded “not guilty” and claimed a trial. the prosecution, in order to prove its charges against the appellants, has examined total 16 witnesses and they are gangaram (pw 1), netram (pw 2), madanlal (pw 3), nathuram (pw 4), raghuveer (pw 5), radhakishan (pw 6), hakim singh (pw 7), sudhar singh (pw 8), budhram (pw 9), ashok sharma (pw 10), daya sagar singh (pw 11), kumari mamta shakya, naib tahsildar (pw 12) , r.s.kailasiya, naib tahsildar (pw 13), shri ram (pw 14), munish rajoriya investigating officer of the case (pw 15), and somsingh raghuvanshi (pw 16). after the prosecution had closed its evidence, statements of the appellants were recorded under section 313 cr.p.c. in which they stated that they have been falsely prosecuted because of previous animosity with the complainants. however, they did not produce any evidence in their defence. 7. the court below on the basis of the evidence of the witnesses named above, examined by the prosecution, convicted the appellants in criminal appeals no.295/03, 319/03 and 322/03 for offence under section 364a ipc whereas the appellant ramcharan in criminal appeal no.374/03 was convicted for offence under section 364a read with section 109 ipc. however, they all have been sentenced to undergo life imprisonment for the offence for which they have been convicted in addition to fine of rs.1000/- each. appellants, aggrieved by their conviction have preferred these appeals. 8. we have heard shri y.s.tomar, shri a.k.jain, shri anoop nigam and shri madhukar kulshreshtha, learned counsels for the appellants in all these appeals and we have also heard shri f.a.shah, learned panel lawyer appearing on behalf of the respondent/state. we have also perused the record of the trial court carefully. 9. counsels appearing on behalf of the appellants have argued that on the basis of evidence adduced by the prosecution, conviction of the appellants, at best, could be only under section 365 ipc. according to them, conviction of the appellants for offence under section 364a or under section 364a read with section 109 ipc cannot be sustained. the contention of the learned counsel appearing on behalf of the appellants is that it was not the case of prosecution in the challan or even during trial that the appellants have made any demand of ransom from the complainant party or they had illegally detained their members with an intention to kill them or to cause hurt to them. it is submitted that the prosecution has not proved on record that there was any threat by the appellants to the members of complainant party [gangaram (pw 1), netram (pw 2) and madan (pw 3)], alleged to be illegally detained that they were put under any threat by the appellants in connection with their alleged demand of ransom from them. the submission of the learned counsels appearing on behalf of the appellants is that even if the court take the evidence of the prosecution at its face value, still according to them, the appellants cannot be convicted for offence under section 364a ipc as essential ingredients of the said offence have not been proved by the prosecution before the trial court. counsels for the appellants have no problem for conviction of the appellants for offence under section 365 ipc in view of evidence of gangaram (pw 1), netram (pw 2) and madan (pw 3) that they were illegally detained by the appellants for about two months. it is submitted by the learned counsels that they are under instructions from their respective clients not to press the present appeals on any other point except for conversion of their conviction from section 364a to section 365 ipc as they are already in jail for more than ten years excluding the period of remission that they might have earned while in jail. 10. in view of the above submission made by the learned counsels appearing on behalf of the appellants, the only question that needs consideration in these appeals is whether conviction of the appellants can be legally converted from section 364a to section 365 ipc on the basis of the evidence of prosecution on record. sections 364a and section 365 ipc read thus : “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 inter-governmental 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 personwhoever kidnaps or abducts any person with intent to cause that person to be secretly and wrongfully confined, shall be punishable with imprisonment of either description for a term which may be extended to seven years, and shall also be liable to fine.” 11. it is apparent on a plain reading of section 364a ipc extracted above, that one of the essential ingredients for convicting a person for offence under the said section is that the prosecution must prove that the accused had made demand from the victim for ransom and had put him under threat of death or to cause hurt to him if the demand is not met. section 365 ipc makes wrongful confinement of a person, either kidnapped or abducted, punishable with imprisonment upto seven years besides fine. 12. as per the prosecution case, the appellants being members of a dacoit group involved in the incident had illegally detained three members of the complainant party, namely gangaram (pw 1), netram (pw 2) and madan (pw 3) for about two months. an attempt was made by the prosecution during trial that gangaram (pw 1) was let off by the appellants after receiving rs.90,000/- from radha kishan (pw 6) and shri ram (pw 14), through accused ramcharan ( appellant in cr.a.374/03). shri ram (pw 14) has not supported the case of prosecution regarding demand or payment of rs.90,000/- by the appellants as a condition for release of gangaram (pw 1). admittedly, netram (pw 2) and madan (pw 3) were let off without any payment made to the appellants by any of the members of the complainant party. there is absolutely no whisper either in the challan or in the evidence of prosecution witnesses that the appellants had made a demand of ransom from the complainant party as a condition for releasing the three persons of their party allegedly detained by them [ gangaram (pw 1), netram (pw 2) and madan (pw 3) ], by putting them under threat of death or causing hurt to them. learned panel lawyer appearing on behalf of the respondent/state could not point, out on being asked, any incriminating evidence against any of the appellants on this crucial aspect required to be proved for convicting a person for offence under section 364a ipc. since the essential ingredients of the offence under section 364a ipc have not been proved by the prosecution against the appellants, their conviction under section 364a ipc and for that matter, conviction of ramcharan ( appellant in cr.a.374/03) for offence under section 364a read with section 109 ipc cannot be sustained. since counsels for the appellants have not pressed these appeals on the point of illegal detention of three persons of the complainant party by the appellants in criminal appeals no.295/03, 319/03 and 322/03, we are of the view that the appellants in these three appeals are liable to be convicted for offence under section 365 ipc. accordingly, conviction of the appellants in criminal appeals no.295/03,319/03 and 322/03 is converted from section 364a to section 365 ipc. 13. as far as appellant ramcharan in criminal appeal no.374/03 is concerned, he is acquitted of charge under section 364a read with section 109 ipc for which he has been convicted by the impugned judgment of the court below. this appeal merits his acquittal because we have found that the prosecution has not been able to prove either demand or payment of ransom which is an essential ingredient of section 364a ipc. accordingly, appeal of appellant ramcharan (cr.a.no. 374/03) is allowed. his bail bonds are discharged. he is ordered to be released from jail forthwith, if not wanted in any other criminal case. 14. as far as appellants in remaining three appeals being criminal appeals no.295/03, 319/03 and 322/03 are concerned, their conviction stands converted by this court from section 364a to section 365 ipc. section 365 ipc prescribes maximum punishment of imprisonment upto seven years. all the appellants in these three appeals have already undergone imprisonment for more than ten years excluding the period of remission. accordingly, they are also ordered to be released from jail forthwith, if not wanted in any other criminal case. 15. in view of the above, all these four appeals stands disposed of. a copy of this judgment be kept in the files of remaining three appeals which have also been disposed of by this common judgment. 

Judgment:

1. All these four appeals are proposed to be decided by this common judgment as they all have been preferred by the convict persons in the same case against the same impugned judgment of the Trial Court dated 21 st April, 2003 in Sessions Trial Case No.24/02.

2. There are total eight convict persons who have been convicted by the Court below vide its impugned judgment, seven i.e. appellants in Criminal Appeals No.295/03,319/03 and 322/03 for offence under section 364A IPC and the eighth one namely Ramcharan ( appellant in Criminal Appeal No.374/03) for offence under section 364A read with section 109 IPC. They all have been sentenced to undergo life imprisonment and fine of Rs.1,000/- each.

3. As per the prosecution case, all the appellants, except appellant Ramcharan were members of a gang who waylaid the members of the complainant party who also were 8-9 in number when they had gone to collect fire wood in Sukhakho forest on the date of incident that took place around 5.30 p.m. on 2 nd January, 2001. As per further case of the prosecution, the dacoits who had waylaid the complainant party had taken alongwith them three persons of the complainant party namely Gangaram (PW 1), Netram (PW 2) and Madan (PW 3) and detained them illegally for two months. Three persons of the complainant party namely Nathu Ram (PW 4), Raghuvir (PW 5) and Budhram (PW 9) were tied with safis and left at the spot.

Three persons who were tied and left at the spot managed to free themselves and reached their respective houses around 12.00 mid-night on the same day, i.e. 2 nd January, 2001. The remaining three persons of the complainant party namely Hakim (PW 7), Sudhar singh (PW 8) and Naresh ( not examined ) were also initially taken by the dacoits with them, but they somehow managed to escape from their clutches and reached their respective houses. The prosecution has stated in the challan that all the dacoits were armed with deadly weapons viz. rifles, guns, tega etc.

4. FIR of the incident was registered with the Police of Police Station Subhashpura on the next day of the incident, i.e. on 3 rd January, 2001 on the complaint of Nathuram (PW 4). Names of the appellants being the accused persons are not disclosed in the FIR. FIR (Ex.P/3) contains the description of four persons of the dacoit group and even the description with regard to remaining members of the dacoit group is not given in the FIR.

5. Appellants were arrested by the Police in the case on different dates. Ramcharan ( appellant in Cr.A. No.374/03) was arrested on 16 th March, 2001 vide arrest memo Ex.P/11; Damodar and Bhikaram alias Bhikha ( appellant No.1 in Cr.A.295/03 and sole appellant in Cr.A.322/03) were arrested on 27 th August, 2001 vide arrest memo, Exs.P/8 and P/9; Mohan, Siya alias Siyaram, Ramjilal and Santaram (Appellants in Cr.A.319/03 and appellant No.2 in Cr.A.295/03) were arrested on 2 nd December, 2001 vide arrest memo, Exs.P/12,P/13, P/14 and P/15; and Pratap ( appellant No.3 in Cr.A.295/03) was arrested on 19 th January, 2002 vide arrest memo Ex.P/16. One of the members of the dacoit group namely Kamlesh alias Bhagatji alias Kamalsingh alias Jagdish could not be apprehended and was declared a proclaimed offender after completing the necessary formalities against him.

6. Appellants in Criminal Appeals No.295/03, 319/03 and 322/03 were charged by the Court below for offence under section 364A IPC, whereas Ramcharan (appellant in Cr.A.No.374/03) was charged for offence under section 364A read with section 109 IPC. They all pleaded “not guilty” and claimed a trial. The prosecution, in order to prove its charges against the appellants, has examined total 16 witnesses and they are Gangaram (PW 1), Netram (PW 2), Madanlal (PW 3), Nathuram (PW 4), Raghuveer (PW 5), Radhakishan (PW 6), Hakim Singh (PW 7), Sudhar Singh (PW 8), Budhram (PW 9), Ashok Sharma (PW 10), Daya Sagar Singh (PW 11), Kumari Mamta Shakya, Naib Tahsildar (PW 12) , R.S.Kailasiya, Naib Tahsildar (PW 13), Shri Ram (PW 14), Munish Rajoriya investigating officer of the case (PW 15), and Somsingh Raghuvanshi (PW 16). After the prosecution had closed its evidence, statements of the appellants were recorded under section 313 Cr.P.C. in which they stated that they have been falsely prosecuted because of previous animosity with the complainants. However, they did not produce any evidence in their defence.

7. The Court below on the basis of the evidence of the witnesses named above, examined by the prosecution, convicted the appellants in Criminal Appeals No.295/03, 319/03 and 322/03 for offence under section 364A IPC whereas the appellant Ramcharan in Criminal Appeal No.374/03 was convicted for offence under section 364A read with section 109 IPC. However, they all have been sentenced to undergo life imprisonment for the offence for which they have been convicted in addition to fine of Rs.1000/- each. Appellants, aggrieved by their conviction have preferred these appeals.

8. We have heard Shri Y.S.Tomar, Shri A.K.Jain, Shri Anoop Nigam and Shri Madhukar Kulshreshtha, learned counsels for the appellants in all these appeals and we have also heard Shri F.A.Shah, learned Panel Lawyer appearing on behalf of the respondent/State. We have also perused the record of the Trial Court carefully.

9. Counsels appearing on behalf of the appellants have argued that on the basis of evidence adduced by the prosecution, conviction of the appellants, at best, could be only under section 365 IPC. According to them, conviction of the appellants for offence under section 364A or under section 364A read with section 109 IPC cannot be sustained. The contention of the learned counsel appearing on behalf of the appellants is that it was not the case of prosecution in the challan or even during trial that the appellants have made any demand of ransom from the complainant party or they had illegally detained their members with an intention to kill them or to cause hurt to them. It is submitted that the prosecution has not proved on record that there was any threat by the appellants to the members of complainant party [Gangaram (PW 1), Netram (PW 2) and Madan (PW 3)], alleged to be illegally detained that they were put under any threat by the appellants in connection with their alleged demand of ransom from them. The submission of the learned counsels appearing on behalf of the appellants is that even if the Court take the evidence of the prosecution at its face value, still according to them, the appellants cannot be convicted for offence under section 364A IPC as essential ingredients of the said offence have not been proved by the prosecution before the Trial Court. Counsels for the appellants have no problem for conviction of the appellants for offence under section 365 IPC in view of evidence of Gangaram (PW 1), Netram (PW 2) and Madan (PW 3) that they were illegally detained by the appellants for about two months. It is submitted by the learned counsels that they are under instructions from their respective clients not to press the present appeals on any other point except for conversion of their conviction from section 364A to section 365 IPC as they are already in jail for more than ten years excluding the period of remission that they might have earned while in jail.

10. In view of the above submission made by the learned counsels appearing on behalf of the appellants, the only question that needs consideration in these appeals is whether conviction of the appellants can be legally converted from section 364A to section 365 IPC on the basis of the evidence of prosecution on record. Sections 364A and section 365 IPC read thus :

“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 inter-governmental 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 personWhoever kidnaps or abducts any person with intent to cause that person to be secretly and wrongfully confined, shall be punishable with imprisonment of either description for a term which may be extended to seven years, and shall also be liable to fine.”

11. It is apparent on a plain reading of section 364A IPC extracted above, that one of the essential ingredients for convicting a person for offence under the said section is that the prosecution must prove that the accused had made demand from the victim for ransom and had put him under threat of death or to cause hurt to him if the demand is not met. Section 365 IPC makes wrongful confinement of a person, either kidnapped or abducted, punishable with imprisonment upto seven years besides fine.

12. As per the prosecution case, the appellants being members of a dacoit group involved in the incident had illegally detained three members of the complainant party, namely Gangaram (PW 1), Netram (PW 2) and Madan (PW 3) for about two months. An attempt was made by the prosecution during trial that Gangaram (PW 1) was let off by the appellants after receiving Rs.90,000/- from Radha Kishan (PW 6) and Shri Ram (PW 14), through accused Ramcharan ( appellant in Cr.A.374/03). Shri Ram (PW 14) has not supported the case of prosecution regarding demand or payment of Rs.90,000/- by the appellants as a condition for release of Gangaram (PW 1). Admittedly, Netram (PW 2) and Madan (PW 3) were let off without any payment made to the appellants by any of the members of the complainant party. There is absolutely no whisper either in the challan or in the evidence of prosecution witnesses that the appellants had made a demand of ransom from the complainant party as a condition for releasing the three persons of their party allegedly detained by them [ Gangaram (PW 1), Netram (PW 2) and Madan (PW 3) ], by putting them under threat of death or causing hurt to them. Learned Panel Lawyer appearing on behalf of the respondent/State could not point, out on being asked, any incriminating evidence against any of the appellants on this crucial aspect required to be proved for convicting a person for offence under section 364A IPC. Since the essential ingredients of the offence under section 364A IPC have not been proved by the prosecution against the appellants, their conviction under section 364A IPC and for that matter, conviction of Ramcharan ( appellant in Cr.A.374/03) for offence under section 364A read with section 109 IPC cannot be sustained. Since counsels for the appellants have not pressed these appeals on the point of illegal detention of three persons of the complainant party by the appellants in Criminal Appeals No.295/03, 319/03 and 322/03, we are of the view that the appellants in these three appeals are liable to be convicted for offence under section 365 IPC. Accordingly, conviction of the appellants in Criminal Appeals No.295/03,319/03 and 322/03 is converted from section 364A to section 365 IPC.

13. As far as appellant Ramcharan in Criminal Appeal No.374/03 is concerned, he is acquitted of charge under section 364A read with section 109 IPC for which he has been convicted by the impugned judgment of the Court below. This appeal merits his acquittal because we have found that the prosecution has not been able to prove either demand or payment of ransom which is an essential ingredient of section 364A IPC.

Accordingly, appeal of appellant Ramcharan (Cr.A.No. 374/03) is allowed. His bail bonds are discharged. He is ordered to be released from jail forthwith, if not wanted in any other criminal case.

14. As far as appellants in remaining three appeals being Criminal Appeals No.295/03, 319/03 and 322/03 are concerned, their conviction stands converted by this Court from section 364A to section 365 IPC. Section 365 IPC prescribes maximum punishment of imprisonment upto seven years. All the appellants in these three appeals have already undergone imprisonment for more than ten years excluding the period of remission.

Accordingly, they are also ordered to be released from jail forthwith, if not wanted in any other criminal case.

15. In view of the above, all these four appeals stands disposed of. A copy of this judgment be kept in the files of remaining three appeals which have also been disposed of by this common judgment.