JUDGMENT
A.N. Jindal, J.
1. This judgment disposes of two Criminal Appeals No. 178-DB of 2004 and Criminal Appeal No. 191-DB of 2004 preferred against the judgment of conviction and sentence dated 30/31.1.2004 passed by Additional Sessions Judge, Faridabad, whereby accused-appellants namely Surender Kumar, Tarun Kumar, Dharmender Singh and Raghbir Singh (hereinafter referred to as ‘the accused’) were convicted under Sections 384/452/364-A read with Section 120-B IPC and accused Dharmender Singh and Raghbir Singh were also convicted under Section 25 of Arms Act. The accused were sentenced as under:
Surender Kumar, Tarun Kumar, Dharmender Singh & Raghbir Singh Under Section 364-A/120-B IPC : To undergo rigorous imprisonment for life and to pay fine of Rs. 3000/- each. In default of payment of fine to further undergo rigorous imprisonment for six months each.
Under Section 384/120-B IPC : To undergo rigorous imprisonment for three years.
Under Section 452/120-B IPC : To undergo rigorous imprisonment for three years and to pay fine of Rs. 2000/- each. In default of payment of fine to further undergo rigorous imprisonment for six months each.
Dharmender Singh & Raghbir Singh : Under Section 25 Arms Act : To undergo rigorous imprisonment for two years and to pay fine of Rs. 1000/- each. In default of payment of fine to further undergo rigorous imprisonment for six months each.
2. All the substantive sentences were ordered to run concurrently.
3. The factual matrix of the case is that on 24.10.2001 at about 2.30 PM, when Amolak Raj Chopra along with his wife Sushila, grand son Anmol Mani Chopra and grand daughter Saloni were watching TV at their house, then three young boys, out of them, one was holding pistol entered the house. The boy with the pistol, put the same on the neck of Amolak Raj Chopra and remaining two boys dragged Anmol Mani Chopra outside the house and took him in a car forcibly. Tarun Kumar accused (who was later on identified) was waiting the aforesaid three accused in a car No. HR51-6566. The boys ran away along with Anmol Mani Chopra, aged about 12 years in the aforesaid car. Amolak Raj Chopra could read number of the car as 6566 and the remaining number could not be read as it was covered under mud. After few minutes Amolak Raj Chopra received a telephonic call not to inform about the occurrence to any body and to arrange for Rs. 20 lacs. He was also threatened that in case he informed the police, then Anmol Mani Chopra would be done to death. On the basis of the aforesaid statement Ex.PA, FIR Ex.PA/1 was registered at Police Station, Central, Faridabad.
4. After recording FIR Ex.PA/1, at about 3.30 PM on 24.10.2001, Narender Kumar, In-charge Police Post, Sector 28, Faridabad came in action. In the meantime Amolak Raj Chopra informed his son Rajan Chopra who also reached the house along with his wife. The I.O. along with the police party and Satpal Chopra and Amolak Raj Chopra went in search of Anmol Mani Chopra (hereinafter referred to as ‘kidnapee’).
5. When they reached near the bridge of village Itmadpur, then Tarun Kumar, while driving the Maruti zen car bearing No. HR51 H 6566, grey colour, was seen coming from the opposite side. Investigator apprehended him and took the aforesaid car into possession vide memo Ex.PF. As intimated by Tarun Kumar, the police party proceeded to the Tilpat suiting range jungle where Parveen Kumar was found sitting on culvert and he on seeing the police party escaped. The name of Parveen Kumar was disclosed by Tarun Kumar accused. The police party further sighted two boys along with Anmol Mani Chopra sitting in the pitch near bushes who were identified as Raghbir Singh resident of Bali Nagar and Dharmender Singh son of Partap Singh resident of Gujjar Nagar. Amolak Raj Chopra identified all the three persons i.e. Raghbir Singh , Dharmender Singh and Parveen Kumar as the kidnappers. The kidnapee was recovered from their custody. On search of Raghbir Singh , Katta .315 bore Ex.P1 containing one cartridge Ex.P2 was recovered from his possession which was taken into possession vide recovery memo Ex.PB. On 25.10.2001, accused Tarun Kumar and Dharmender Singh were interrogated. During interrogation Tarun Kumar got recovered the mobile phone Ex.P5, vide recovery memo Ex.PJ. Accused Dharmender Singh got recovered the spring actuated knife Ex.P6 which was taken into police possession vide recovery memo Ex.PK.
6. Accused Parveen Kumar was arrested in the presence of Amolak Raj Chopra. Both the accused disclosed that Surender Kumar was also their coaccused and further told that Surender Kumar had pointed out the house of Amolak Raj Chopra. Both Surender Kumar and Parveen Kumar were arrested in pursuance of statement under Section 27 of Evidence Act. Parveen Kumar got recovered .315 bore pistol Ex.P2/1 which was taken into possession vide separate recovery memo Ex.PN.
7. On 26.11.2001, the Investigating Officer collected the record pertaining to the employment of Surender Kumar from the factory of Rajan Chopra and took the same into possession vide recovery memo Ex.PO.
8. On 9.12.2001, he got attested the pistol and revolver from the armour. On 28.12.2001, scaled site plan was got prepared from Manoj Kumar Draftsman. After obtaining the due sanction for prosecution of the accused under Section 25 of the Arms Act and on completion of the investigation challan against the accused Tarun Kumar, Dharmender Singh, Raghbir Singh and Surender Kumar was presented before Additional Chief Judicial Magistrate, Faridabad which was committed to the Court of Sessions for trial whereas challan against the accused Parveen Kumar: a juvenile was filed separately and he is still facing trial before the concerned Juvenile Justice Board.
9. In order to bring home the charge against the accused, the prosecution examined PW-1 ASI Krishan Dev who recorded the FIR Ex.PA/1 on receipt of ruqa Ex.PA at the Police Station, Central, Faridabad. PW-2 Hitender Kumar, Armourer tested the pistol and cartridge of 315 bore and opined, vide his report Ex.PB, that the same were in working condition and fit for firing. PW-3 HC Babu Ram has proved the disclosure statement Ex.PC made by Tarun Kumar and recovery memo of the mobile phone Ex.PJ and the Maruti Zen car bearing No. HR 51H 6566. Anmol Chopra PW-4 has reiterated the version as set up by Amolak Raj Chopra in the FIR. He was 10- 1/2 years old at the time of incident. Besides corroborating the FIR, he has further stated that one boy put revolver on the neck of his grand father and two persons dragged him whereas 4th person was sitting on the steering of the car. When he tried to raise his hand to inform the police officials coming from the opposite side, then he was threatened with the revolver and the cartridge. He further corroborated that the name of the driver was Tarun Kumar. The occupants of the car were Parveen Kumar and Dharmender Singh. This witness has further stated that accused Surender Kumar was not present at the time when they entered into their house and also at the time when he was recovered. He was also not present at the place from where he was kidnapped and at the place from where he was recovered. PW-5 Rajan Chopra has testified that Surender Kumar accused was his employee. On 23.10.2001 he had visited his house at 8.30 PM and had made enquiry about the bunch of the keys and also about Anmol Mani Chopra. (Rajan Chopra was also marked as PW-6) SI Narender Kumar, In-charge Police Post Faridabad (PW-7), is the witness to the recovery of kidnapee and the arrest of the accused at the spot and recovery of the car. He has stated that Tarun Kumar was arrested while he was driving the car No. HR 51H 6566 and when he was taken to Tilpat Suiting Range Jungle where on seeing the police party, Parveen Kumar accused escaped. They also spotted Raghbir Singh resident of Village Bali Nagar and Dharmender Singh son of Partap Singh resident of Gujjar Nagar along with kidnapee. Both were arrested. Personal search of accused was conducted. One Katta i.e. .315 bore pistol containing one cartridge was recovered from Raghbir Singh accused. Accused Parveen Kumar was arrested on 26.10.2001. PW-8 Rajender Singh has given his evidence vide his duly sworn affidavit Ex.PX. PW-9 Amolak Raj Chopra has reiterated the allegations as mentioned in the FIR. He has also proved the identity of Tarun Kumar and stated that he was driving the Zen car at the time of kidnapping of his grand son. He has also stated that he had received anonymous telephone call through his the caller had demanded a sum of Rs. 20 lacs by way of ransom and told him to wait for the next call for the place as well. He also further corroborated that on seeing them Parveen Kumar accused escaped whereas the police party apprehended Dharmender Singh and Raghbir Singh along with grand son in the bushes. On the question of identity, this witness was suggested that he knew the accused prior to the incident. Anoj Kumar Draftsman PW-10 proved the scaled site plan Ex.PW-9/A. PW-11 Mahesh Sharma, Reader to District Magistrate Faridabad proved the sanction order Ex.PW-11/A for launching prosecution against the accused Dharmender Singh and Raghbir Singh under Section 25 of the Arms Act.
10. On closure of the prosecution evidence, all the accused were examined under Section 313 of Cr.P.C. in which all the incriminating circumstances appearing against them were put to them to which they pleaded as incorrect and further stated that they were innocent and were falsely implicated in this case.
11. During defence, accused examined Omvir DW-1. He stated regarding the innocence of Dharmender Singh accused. Azad Singh DW-2 has stated that Tarun Kumar accused is innocent. The accused was arrested from his house. Brother of Tarun Kumar namely Brijesh had produced the Maruti Zen car before his presence. After examining the aforesaid witnesses, accused closed their defence evidence.
12. On conclusion of the trial, all the accused were convicted under Section 364-A/384/452 read with Section 120-B of IPC and the accused Dharmender Singh and Raghbir Singh were also held guilty for the offence under Section 25 of the Arms Act.
13. The controversy raised before us by the learned Counsel for the appellants is three fold. (i) the witnesses as well as the kidnapee did not know the names of the accused persons and no identification parade was got conducted by the I.O. Names of the accused were introduced on the basis of the co-accused Tarun Kumar which is inadmissible in evidence, therefore, the benefit of doubt should be extended to the accused; (ii) the prosecution has failed to prove the participation of Surender Kumar and Raghbir Singh in the commission of the crime; and (iii) no sufficient evidence regarding demand of ransom for releasing the kidnapee has been led by the prosecution and even if demand of ransom is proved, even then the provisions of Section 364-A IPC are not attracted.
14. Before laying our hands to discuss the controversy in the matter, it may be observed that Parveen Kumar was arrested later on and he being juvenile is facing trial before the Juvenile Justice Board, therefore, no findings are required to be given qua him. As regards the question regarding identity of the accused, it is not disputed that no identification parade was conducted yet there was no such requirement in this case as the police had arrested them in the presence of Amolak Raj Chopra (PW-9).
15. The kidnapee (PW-4) who remained with the accused for sufficient time identified them in the Court. Accused also did not ask for any test identification by the witnesses rather they have suggested to Amolak Raj Chopra (PW-9) that the witnesses knew the accused since prior to the occurrence. Surender Kumar accused was working in the factory of Rajan Chopra, father of the kidnapee, thus the question of test identification parade in this case does not arise.
16. Now coming to the next question i.e. participation of the appellants in the commission of the crime, it is observed that FIR does not contain the names of the accused but only some description had been given. The participation of the accused in the commission of crime can well be inferred from the testimony of kidnapee i.e. Anmol Mani Chopra (PW-4).
17. He was about 10- 1/2 years old student. He was declared as competent witness by the Court. He has deposed that at about 2.30 PM three boys came in a car No. HR 51H 6566 and they entered in their house. One of them put revolver on the neck of his grand father and other two dragged and put him in the car standing outside. The 4th boy was driving the car. While identifying the boys, he stated that Tarun Kumar was driving the car and Parveen Kumar (a juvenile) is not present in the Court. Dharmender Singh was also in the Zen car. He has named and identified all the accused and has described about the participation made by them in the commission of the crime. However, he has not mentioned about the part played by Surender Kumar accused. During cross examination he has stated that he was taken into jungle by four persons. After leaving them in the jungle, Tarun Kumar accused had left whereas three accused remained there. One out of them escaped on seeing the police party and the remaining two were over-powered by the police. Accused Surender Kumar was not present at the time when they entered in his house or at the time when he was recovered. Surender Kumar was not present either at the place from where he was kidnapped or at the place from where he was recovered. On reappreciation of the evidence of the kidnapee, it comes out that he has not disclosed about any part played by Surender Kumar in the commission of the crime. Though kidnapee (PW-4) has not named Raghbir Singh but he has specifically stated that three persons entered the house and out of those three persons two were arrested by the police. It is the specific case of the prosecution that Raghbir Singh and Dharmender Singh were arrested from the spot and Amolak Raj Chopra (PW-9) has also specifically stated that Raghbir Singh and Dhamender Singh were arrested from the spot. Thus, the complicity of all the accused except that of Surender Kumar in the commission of crime is fully established. Testimony of the kidnapee has been duly corroborated by Amolak Raj Chopra (PW-9).
18. Only evidence against Surender Kumar is that he being an employee of Rajan Chopra father of the kidnapee, had visited the house of Rajan Chopra one day prior to the occurrence and enquired about the kidnapee and that the accused Dharmender Singh in his disclosure statement Ex.PH dated 25.10.2001 under Section 27 of the Evidence Act had stated that he along with Tarun Kumar, Surender Kumar and Parveen Kumar Kumar planned to kidnap the boy to earn lot of money. The aforesaid evidence in the shape of disclosure statement cannot be used against Surender Kumar as the statement under Section 27 of the Evidence Act is admissible only to the extent of effecting the recovery pursuant to the said statement and the remaining part of the said statement is inadmissible in the evidence. The said statement also does not fall within the purview of Section 10 of the Evidence Act as these are not statements or documents prepared by them prior to the occurrence but these are the statements allegedly made by the accused before the police during investigation as such the same being not the statements or documents under Section 10 of the Evidence Act cannot be used against Surender Kumar to prove his participation in conspiracy of Dharmender Singh, Tarun Kumar, Raghbir Singh and Parveen Kumar. As such, doubt has been sufficiently created with regard to the role of Surender Kumar in the commission of the crime. The recovery of the country made pistol, on 24.10.2001 i.e. on the day of commission of crime, from Raghbir Singh accused also stands established from the evidence of Amolak Raj Chopra (PW-9) and the Investigating Officer.
19. Now coming to the last question as to whether the offence committed by the accused falls within the purview of Section 364-A of IPC. In this regard, it may be observed that Amolak Raj Chopra at the very inception vomitted out in the FIR that he had received a telephone call from the accused that they should be ready with a sum of Rs. 20 lacs and if they tried to inform the police, then they would kill the kidnapee. This initial version stands corroborated by Amolak Raj Chopra while appearing as PW-9. The kidnapee while appearing in the witness box as PW-4 also stated that accused demanded a sum of Rs. 20 lacs and threatened his parents to kill him. Again during cross-examination he has clarified that the accused had conveyed a demand of Rs. 20 lacs on mobile phone which was heard by him. Thus, unchallenged testimony of this witnesses is bound to be believed. The recoveries of the pistol from the accused Raghbir Singh, spring actuated knife from accused Dharmender Singh and recovery of car from accused Tarun Kumar go to establish that the accused armed with deadly weapons trespassed into the house of Amolak Raj Chopra, kidnapped Anmol Mani Chopra, thereafter made a telephonic call on a mobile phone for placing a demand of Rs. 20 lacs as a ransom for releasing Anmol Mani Chopra. As such provisions of Section 364-A IPC are attracted.
20. It has been vehemently contended that Section 364-A IPC has been added in the Code in cases when ransom is demanded to compel the government or any foreign state or international or inter governmental organization to do or abstain from doing any act or to pay ransom and it is not attracted in case the accused compelled an individual to release the person kidnapped on the condition of payment of ransom.
21. We have given our thoughtful consideration to the aforesaid contentions. Before entering into the controversy, it will be appropriate to reproduce Section 364-A of IPC.
364-A. 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 persons, 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 or 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.
22. On bare reading of the Section, the following ingredients are required to be completed in order to complete the offence under Section 364-A of IPC:
(i) That the accused kidnapped or abducted a person; or
(ii)That the accused kept such person under his detention;
(iii)That the accused threatened to cause death or hurt to such person or caused death or hurt to him;
(iv)That the accused did commit so as to compel
(a) the Government; or
(b) any foreign state or international; or
(c) Inter governmental organization; or
(d) any other person.
(v)That the accused compelled to do or abstain from doing any act for a ransom.
23. Prior to the introduction of Section 364-A IPC, vide act No. 42 of 1993, applicable w.e.f. 22.5.1993 the only penal provision for punishing the accused for kidnapping or abduction was only if it was made for murdering or so disposing him of or to put him in danger of being murdered. Section 364 IPC is reproduced as under:
364. Kidnapping or abducting in order to murder – Whoever kidnaps or abducts any person in order that such person may be murdered or may be so disposed of as to be put in danger of being murdered, shall be punished with imprisonment for life or rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
24. On cursory look of the aforesaid Section, it transpires that the aforesaid Section was silent for punishing those offenders who used to threaten to cause death or hurt for ransom, therefore, in cases involving ransom, the Courts used to convict the accused under Section 364 with the aid of Section 384 IPC. Therefore, the legislature in its wisdom in order to widen the scope of penal provisions so as to punish the offenders for the offences of kidnapping “for ransom” introduced Section 364-A vide Act No. 42 of 1993 as applicable with effect from 22.5.1993. Section 364-A as added by the aforesaid Act is reproduced as under:
364-A. 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 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.
25. Still the aforesaid Section as well as Code could not meet the contingency when the offence of kidnapping for ransom was committed in order to compel any foreign State or international inter-governmental organization, therefore, in order to arrest the menace of kidnapping for ransom in order to compel the foreign State or international inter governmental organization and to widen further the scope of Section the words “any other person” already existing in Section 364-A prior to 1995 was substituted with words “any foreign State, international intergovernmental organization or any other person” by Act No. 24 of 1995 in Section 364-A IPC. The amended Section 364-A IPC as applicable w.e.f. 26.5.1995 is reproduced as under:
364-A. Kidnapping for ransom, etc. – Whoever kidnaps or abducts any person or keeps a person in detention after such kidnapping or abduction, and threatens to cause death or hurt to such person, or by his conduct gives rise to a reasonable apprehension that such person may be put to death or hurt, or causes hurt or death to such person in order to compel the Government or any foreign State or international intergovernmental 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.
26. Thus with effect from 26.5.1995, the offence of kidnapping or abduction did not cover only private individual but it also covers the cases of abduction to compel not only private individuals for ransom but also compel any foreign State, international inter-governmental organization to do or abstain from doing any act or to pay ransom. Mr. R.S. Sihota, learned Counsel for the appellant has urged that the words “any other person” in this Section are restricted to the officials/officers concerning the foreign State, international intergovernmental organization or of the government and these words cannot be read in conjunction with the remaining part of the Section.
27. Having given our thoughtful consideration to the aforesaid contention we do not find ourselves in agreement with the aforesaid contention.
28. The object and scope of the amendment was to provide severe punishment in cases where offence of abduction or kidnapping is done or the person is kept continuously under detention and the accused threatens to cause death or hurt to such person detained or creates a reasonable apprehension that such person may be put to death or hurt or causes hurt or death in order to compel the government or foreign State or international inter-governmental organization or any other person and at the time of framing the amendment, the intent and purport of the legislature was not to reduce its scope and confine the same only in case of compelling government or any foreign State or international inter-governmental organization, therefore, the words “any other person” is not restricted to the aforesaid institutions but these words are quite independent of them and refer to the offences when the individuals are compelled to do or abstain to do any act or to pay ransom.
29. The Apex Court while interpreting Section 364-A in case Malleshi v. State of Karnataka 2004(8) Supreme Court Cases 95 observed as under:
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.
30. The said case also pertains to the abduction of Vijayabhaskar, a student of SJM College situated at Holalkere Road in Chitrandurga and did not pertain to compelling any Government or foreign State or international or inter-governmental organization.
31. A reference has been made by the learned Counsel for the appellants to the authorities i.e. Balwant Singh v. State of Haryana 2002 (2) RCR (Criminal) 369 and Vinod Kumar v. State of Haryana 2005(4) RCR (Criminal) 474, wherein it was observed that offence under Section 364-A IPC is not made out against the appellants in the case got registered by a private individual. With due regard to both the judgments, we stand to differ with the same as no proper assistance has been rendered by the State as well as defence counsel in order to reach the right conclusion. Now coming to the other argument that for want of specific evidence regarding demand of ransom, the offence under Section 364-A IPC does not become complete. The same lacks merit. The factual position found by the trial Court leads us to observe that the object of abduction of Anmol Mani Chopra was for ransom. PW-9 Amolak Raj Chopra has specifically stated that he had received a telephonic call at his house vide which he was threatened to kill the kidnapee and ransom of Rs. 20 lacs was demanded. The kidnapee has also corroborated the fact that the accused were demanding Rs. 20 lacs for his release from his parents through a mobile phone. Thus, the evidence clearly reveals that demand was made from the parents of the kidnapee and kidnapee was also conveyed about the said demand. The Apex Court in Malleshi v. State of Karnataka case (supra) also observed that payment for release is made by the persons to whom the demand is made. The demand originally is made to the person abducted or kidnapped. After making the demand to the kidnapped or abducted person, merely because the demand could not be conveyed to some other person, as the accused is arrested in the meantime, does not take away the offence out of the purview of Section 364-A IPC. It has to be seen in such cases as to what was the object of kidnapping and abduction. The Apex Court while clarifying the demand of ransom, observed in the operative part of its judgment as under:
Ultimately the question to be decided is “what was the intention? Was it demand of ransom?” There can be no definite manner in which demand is to be made. Who pays the ransom is not the determinative fact, as discussed supra.
32. From the facts and circumstances of the instant case, the intention of the accused is a writ large and the only inference which can be drawn is that the accused kidnapped Anmol Mani Chopra for ransom. No other point has been urged before us in order to assail the impugned judgment.
33. For the foregoing reasons, we hereby accept the appeal preferred by Surender Kumar, set aside the conviction and sentence qua him and acquit him of all the charges. He shall be set at liberty forthwith if not required in any other case. However, appeal preferred by the remaining accused is hereby dismissed.