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CASE NO.: Appeal (crl.)  165 of 2008

PETITIONER: Vinod

RESPONDENT: State of Haryana

DATE OF JUDGMENT: 24/01/2008

BENCH: Dr. ARIJIT PASAYAT & P. SATHASIVAM

JUDGMENT: J U D G M E N T (Arising out of S.L.P.(Crl.) No.2242 of 2006)

DR. ARIJIT PASAYAT, J.

1.      Leave granted.  

2.      Challenge in this appeal is to the judgment of a Division  Bench of the Punjab and Haryana High Court upholding  conviction of the appellant for offence punishable under  Section 364A of the Indian Penal Code, 1860 (in short the  \021IPC\022) as recorded by the learned Additional Sessions Judge,  Panipat.  

3.      By the impugned common judgment two Criminal Appeal  Nos.255 and 307 of 2001 were disposed of.  Ten persons  including one Virender who was declared a proclaimed  offender were sent for trial. After trial all the accused except  Virender, whose presence the investigating agency was not  able to secure during trial were convicted under Section 364-A  of IPC. They were convicted for offence punishable under  Section 364-A IPC and sentenced to imprisonment for life and  a fine of Rs.1,000/- with default stipulation.       4.      Prosecution version as unfolded during trial is as follows:            Amit Kumar son of Madan Mohan (PW 2) was aged 9  years and on the date of the incident i.e. 29.5.1996 was  studying in class III. He used to live with his father in House  No.212 Old Housing Board Colony, Panipat at a distance of  about 100 yards from Salarganj Gate, Panipat. At about noon  time on 29.5.1996 the boy had gone to Salarganj to play with  his friends and when he did not return home, the family made  all efforts to trace him which proved to be futile. Apprehending  that he had been kidnapped, Madan Mohan (PW-1) proceeded  to the Police Station City, Panipat to lodge a report. On the  way he met a police party at Sukhdev Nagar where he made  his statement Ex.PA and on its basis formal FIR (Ex. PA/2)  was recorded.            On 2.6.1996, Sanjiv Jain and Faqir Chand (PW-4) came  and apprised Madan Mohan that Yashpal, a resident of  Panipat, had come to them and told  about their having  received a telephonic message from Saharanpur that Amit  Kumar was well but his abductors were demanding a ransom  of Rs.10,00,000/- failing which they were threatening to kill  Amit Kumar. The abductors had further informed Yashpal that  in case the matter was reported to the Police even then Amit

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Kumar would be killed. Yashpal had also been apprised of the  manner in which the money was required to be paid, which  mode required Yashpal to travel in Car No.HR-06B-244  belonging to Sanjiv Tayal, the younger brother of Madan  Mohan, display a white cloth for identification before reaching  the Railway Crossing before Rampur at 10.00 p.m. On  reaching there, the car was to give a signal with the dipper.      On getting this information, Madan Mohan, Sanjiv Jain  and Faqir Chand had decided not to report the matter to the  police and had arranged for the requisite amount taking  Rs.3,50,000/- from M/s Surya International (a factory owned  by Madan Mohan), Rs.50,000/- from M/s Design Rug owned  by the younger brothers of Madan Mohan, Rs.2 00,000/-from  M/s Surya International in the name of Faqir Chand, an  amount of Rs.2,75,000/- from Sintex Handicraft, Panipat in  the name of  wife of Madan Mohan as she was partner of the  firm.  

       On 3.6.1996 Sanjiv Jain and Faqir Chand had again  informed Madan Mohan that Yashpal had come and told them  that he had received another message that in case the amount  of Rs.10,00,000/- was not paid that day itself, Amit Kumar  would be killed. Yashpal had further assured them not to  worry and had taken the entire responsibility for the safety of  the child. Thereupon the currency notes already collected had  been arranged in the denomination of Rs.500/-, Rs.100/- and  Rs.50/- respectively and the first and the last notes of the  bundles were initialled as "MM" by Madan Mohan. Sanjiv Jain  had then called Yashpal at the residence of Madan Mohan and  handed over the bag containing currency notes of  Rs.10,000,000/-  to him. Yashpal had taken away the bag in  the car bearing registration No.HR-06B-244, which he had  driven away himself.      On 4.6.1996, Yashpal brought back Amit Kumar and  handed him over to Madan Mohan. Amit Kumar told his father  that on 30.5.1996 he was accosted by Virender the  absconding accused, who apprised him that his father was  calling him. On hearing this, Amit Kumar accompanied  Virender for some distance where two young men, namely,  Vinod and Sohan were positioned near a Yamaha Motor Cycle.  Vinod was standing near the Motor Cycle while Sohan was  sitting on the pillion. Sohan had caught hold of Amit Kumar  and closed his mouth and made him sit on the motor cycle  whereafter the motor cycle, was driven away by Vinod to the  G.T. Road via bus stand from where it was taken to  Gharaunda. When the motor cycle reached the Yamuna  bridge, Amit Kumar was given water to drink and the accused  threw a coin in the river. After this his abductors took him to  Railway Station Sona Arjunpur where it started raining.  Thereupon they made him to sit on the ticket window. When  the rain stopped, Vinod and Sohan had removed him on the  motor cycle to a garden where 4/5 persons were taking liquor.  One of them asked Vinod whether the work had been done  and another one of them had enquired as to where Virender  was, to which enquiry Vinod replied that Virender had been  left at Panipat with Yashpal. The group was addressing each  other by their names as Sohan, Pawan, Pappu, Jagbir, Sunder  Pal and Vikas. They had served meals to Amit Kumar in the  garden.      On the next day, Virender also came there and thereafter  Virender and Vinod had taken Amit Kumar on the Yamaha  motor cycle to the house of Vidya Sagar Chawla at  Saharanpur. Vinod stayed with Amit Kumar whereas Virender  used to go out at times. Vidya Sagar Chawla also remained  present in the house and the entire incident was narrated by

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Amit Kumar to him that night. On the following day, after  Virender had returned, he and Vinod took Amit Kumar to a  sugar cane field on a Yamaha motor cycle. On the pavement of  nearby canal, an Ambassador car was standing and then  Sohan, Pawan, Pappu, Jagbir, Sunder Pal and Vinod had  taken Amit Kumar for making a telephonic call to his father  asking him to reach soon. On the way, Vinod had told them  that the uncle of Amit Kumar and Kakku had reached and,  therefore, they should escape. On hearing this, the appellants  took Amit Kumar back to the sugar cane field. During the  night car belonging to the uncle of Amit Kumar came back  near the sugar cane field and Yashpal got down from the  same. He called for the aforementioned persons where upon  Amit Kumar was taken near the car. Vinod enquired from  Yashpal whether everything was alright at the house of Amit  Kumar and Yashpal replied in the affirmative. Vinod handed  over Amit Kumar to Yashpal, who in turn handed over a bag to  Vinod. Yashpal further told that they shall count for the  money after some time. Yashpal thereafter took Amit Kumar to  Saharanpur where meals were taken and Yashpal had left him  at the residence of Madan Mohan.      After his release, Amit Kumar had told his father that he  could point out the places where he had been taken. He had  also made a similar statement before the police. On 8.6.1996,  Madan Mohan and his son Amit Kumar accompanied the  police party.  The boy had first taken them to Salarganj gate  from where he had been kidnapped and thereafter to Sona  Arjunpur Railway Station in Uttar Pradesh. From there, he  had taken them to a garden where he had been kept and from  there to a sugar cane field which was at some distance from  the Railway Station. Thereafter, Amit Kumar had taken them  to the house of Vidya Sagar Chawla at Saharanpur. The Police  had been carrying out raids to apprehend the accused and  during one such raid on 19.6.1996, in which  Pawan Kumar  (PW-3) had joined, the police had gone to Sona Arjunpur  where a person, whose name did not come forth in the  investigation, had disclosed that Sunder Pal and Pawan were  sleeping under a tree in the field. The police had then raided  the field and apprehended both of them. On interrogation,  Sunder Pal made a disclosure statement (Ex.PF) that out of  the ransom of Rs.50,000/-, he had spent Rs.1,000/  and had kept concealed the remaining amount of Rs.49 000/-  wrapped in a polythene paper underneath the ground in the  fields. His disclosure statement which runs into five pages  interestingly incorporated the entire details of the kidnapping  including the portions wherein even he had not been  associated and bears his thumb impression and is attested by  Pawan Kumar and Jai Narain. Pursuant to this disclosure  statement Sunder Pal had got recovered Rs.49,000/- currency  notes of the denomination of Rs.100/- which were taken into  possession through recovery memo Ex.PF/1. Pawan too made  an equally detailed disclosure statement Ex.PG which was  reduced into writing and signed by him and attested  by  Pawan Kumar and Jai Narain in the presence of S1 Krishan  Pal and subsequent thereto, he too got recovered Rs.45,000/-  of the denomination of Rs.100/- each from the field indicated  by him in the disclosure statement. It was taken into  possession through recovery memo Ex.PG/1.      On 20.6.1996, when Madan Mohan was standing at  Mayur Chowk, a Sub Inspector, an Assistant Sub Inspector  and three constables met him and they together proceeded  towards the Railway Station, Panipat. When they were  standing outside the cycle stand, Railway Station, Madan  Mohan noticed accused Yashpal coming towards the Railway  Station. Yashpal was apprehended by the police and on his

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personal search a country made pistol and three live  cartridges from the left pocket of his trouser were recovered,  which were taken into possession through recovery memo. On  interrogation, in the presence of Madan Mohan, Yashpal had  made a disclosure statement Ex.PB in which after giving the  details of the persons involved in the kidnapping and the  amount of ransom taken, he disclosed that his share in the  ransom came to Rs.6,00,000/- out of which Rs.5,75,000/-  have been kept in the bag in a Almirah at his residential house  and an amount of Rs.25,0000/- had been kept concealed in  the house of his sister in Ludhiana and a pistol had been kept  concealed in a house of his sister in Saharanpur. Pursuant to  this disclosure statement, Yashpal got recovered  Rs.5,75,000/- and the black coloured bag bearing the words  "M.M. Tayal" embroidered thereon from his house, which were  taken into possession through recovery memo Ex.PC, which  was attested by Madan Mohan and Ramesh Chand.           On the same day, Inspector Krishan Pal (PW-8) joined  Sanjay Tayal in the investigation and after receipt of the secret  information about Vinod, Vikas and Vidya Sagar, he went to  the Truck Union, Panipat and apprehended all of them from a  hut near a tube well. The inspector had recovered a sum of  Rs.42,000/- from a bag which was being carried by Vikas. The  notes were in the four packets of Rs.100/- denomination and  four notes were of the denomination of Rs.500/-. The first and  the last notes bore the initials of "MM". These were taken into  possession through recovery memo Ex.PR, which was attested  by the witnesses. A similar search of Vinod led to the recovery  of Rs.41,000/-, which were carried by him in a bag. The notes  were in four packets of Rs.100/; denomination and two  packets of Rs.500 denomination. The first and the last  currency notes of the packet of Rs.500/- denomination bore  the initial \023MM\024, the signatures of Madan Mohan (PW-1). The  notes were taken into possession through recovery memo  Ex.PS. A similar search conducted on the person of Vidya  Sagar led to the recovery of Rs.24,000/-. All the notes were of  the denomination of Rs.500/- and 12 notes were recovered  from the right pocket of Vidya Sagar while 36 notes were  recovered from the back pocket of the pant of Vidya Sagar. All  the notes bore the initials "MM", which were identified by  Sanjay Tayal and taken into possession through recovery  memo Ex.PT. During the personal search of Vinod and Vikas  one pistol of .12 bore alongwith two live cartridges were  recovered from Vinod whereas from Vikas one pistol .315 bore  along with three live cartridges were recovered.               On the same day, Inspector Ravinder Kumar (PW-9) along  with SI Yad Ram and other police officials had gone to Sona  Arjunpur in search of the accused and there one Jaswant Rai  was joined in the investigation. There the police party got  secret information that Virender, Sohan and Vishav Pal were  coming from Shamli to Panipat on a Yamaha motor cycle  whereupon he set up a naka. On their arrival, Sohan, Virender  and Vishav Pal were apprehended and a sum of Rs.40,000/-  were recovered from Vishav Pal, which were carried by him in  a bag of black colour, which he was holding in his hand. A  similar sum of Rs.40,000/- was recovered from a bag which  was being carried by Sohan. All the notes were of the  denomination of Rs.100/- each and bore the initials "MM" of  Madan Mohan complainant, who has been described as  Madan Gopal-complainant. On the personal search of  Virender, 86 currency notes of the denomination of Rs.500/-  each i.e. Rs.43,000/- were recovered. All the aforesaid  currency notes were recovered through recovery memos Ex.PJ,

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PK and PL respectively. The motor cycle was also taken into  possession through recovery memo Ex.PM.      On 4.8.1996, Inspector Ravinder Kumar (PW-9) along  with SI Randhir Singh and other police officials and the  complainant went to Village Sona Arjunpur in search of  Jagbir appellant where he came to know that he had gone to  Panipat in order to surrender in the Court. When the police  party was present near the bridge of Yamuna, the Inspector  received secret information that Jagbir had gone to Panipat.  When the police party reached Sanjay Chowk, Panipat, the  complainant pointed out towards Jagbir who was standing  near a three wheeler. He was apprehended. On 7.8.1996, on  interrogation Jagbir made a disclosure statement Ex.PD to  the effect that he had kept concealed an amount of  Rs.5,000/- in a wax paper in the Baithak of his house  situated in Village Sona Arjunpur. Thereafter, in pursuance  of his disclosure statement, he got recovered a sum of  Rs.5,000/- of the denomination of Rs.100/- each. The same  were taken into possession through recovery memo Ex.PE.  One of the notes was bearing the initial of "MM".

5.      On completion of the investigation, a challan was put in  the Court of the Illaqa Magistrate, who committed the case to  the Court of Sessions as the offences disclosed therein were  exclusively triable by that Court.

6.      On going through the challan papers, Learned  Additional Sessions Judge framed charge under Section 364- A IPC against all the appellants to which they pleaded not  guilty.

7.      In order to bring home charge against the appellants,  the prosecution examined Madan Mohan (PW-1), Amit  Kumar (PW2), Pawan Kumar (PW3), Faqir Chand (PW4), SI  Yad Ram (PW5), ASI Dalel Singh (PW6), Inspector Rajinder  Singh (PW7), SI Krishan Pal (PW8) and Inspector Ravinder  Kumar (PW9).

8.      When examination under Section 313 of the Code of  Criminal Procedure, 1973 (in short \021Cr.P.C.\022) in order to  explain the incriminating circumstances appearing in  evidence against them, Vikas, Vishav Pal, Pawan Kumar,  Vidya Sagar, Sunder Pal, Vinod, Sohan and Jagbir  pleaded  innocence and false implication.        9.      Placing reliance on the evidence of victim Amit Kumar  (PW-2), Madan Mohan (PW-1) and Pawan Kumar (PW-3) as  noted above the accused persons were found guilty and  sentenced.        10.     Before the High Court stand of the appellant was that  offence under Section 364-A IPC has not been made out and  in any event the seized money have not been produced during  trial which prompted the High Court to take serious note of  the lapse. But the High Court upheld the conviction and the  sentence of the appellant.

11.     It was pleaded that the prosecution version should not  have been accepted. In any event, according to learned  counsel for the appellant Section 364-A has no application.       12.     In response, learned counsel for the respondent-State

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submitted that the High Court erroneously observed that the  seized notes were not produced during trial. In any event the  High Court was right in dismissing the appeal.  It would be  appropriate to deal with the plea that seized currency notes  were not produced.  Following observations of the trial Court  are relevant:       \023\005Similarly accused Pawan Kumar suffered a  disclosure statement Ex.PG and got recovered  an amount of Rs.45,000/- which was taken  into possession vide memo Ex.PG/1. Ex.P4 is  the currency notes. He also prepared the  rough site-plans Ex.PP and Ex.PQ regarding  the aforesaid recoveries. He further stated that  on 20.6.1996 he joined Sanjay Tayal in the  investigation of this case and after receipt of a  secret information, he rushed to Truck Union  Panipat and there he apprehended accused  Vinod, Vikas and Vidya Sagar. He conducted  the personal search of the aforesaid accused  and recovered an amount of Rs.42,000/- from  accused Vikas. The currency notes were in  four packets of Rs.100/- denomination and  four notes were of the denomination of  Rs.500/-. The first and the last note of each  packet were bearing the initial of \023M.M.\024 which  also identified Sanjay Tayal of his brother  Madan Mohan. He took the same into  possession and the bag is Ex.P7 and currency  notes are Ex.P4.  The recovery memo is   Ex.PR. He also conducted the personal search  of Vinod and recovered an amount of  Rs.41,000/- which were in a bag which is  Ex.P8 which accused was carrying. The  aforesaid currency notes were in four packets  having a denomination of Rs.100/- and two  notes were of the denomination of Rs.500/-  The first and the last note of every bundle was  having the initial of \023M.M.\024 and PW Sanjay  Tayal identified the same. The currency notes  were Ex.P4. He took into possession the bag  Ex.PS which bears his signature as well as  signature of Sanjay Tayal. He also conducted  the personal search of Vidya Sagar accused  and recovered a sum of Rs.24,000/-. All the  currency notes were of the denomination of  Rs.500/-. The 12 notes were recovered from  the right pocket of the accused Vidya Sagar  whereas 36 currency notes were recovered  from back side pocket of the pant of the  accused. All the currency notes were bearing  the initial of Madan Mohan which were  identified by Sanjay Tayal.\024           13.     It is to be noted that before the High Court challenge was  not raised to shake the credibility of the testimony of Madan  Mohan (PW-1) and Amit Kumar (PW-2) during arguments.        14.     Section 364-A deals with \021Kidnapping for ransom etc.\022  This Section reads as follows:

\023Whoever 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

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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.\024

        15.     The Section refers to both \023Kidnapping\024 and \023Abduction\024.   Section 359 defines Kidnapping.  As per the said provision  there are two types of kidnapping i.e. (1) kidnapping from  India; and (2) kidnapping from lawful guardianship.

16.     Abduction is defined in Section 362. The provision  envisages two types of abduction i.e. (1) by force or by  compulsion; and/or (2) inducement by deceitful means. The  object of such compulsion or inducement must be the going of  the victim from any place. The case at hand falls in the second  category.

17.     To \023Induce\024 means \023to lead into\024.  Deceit according to its  plain dictionary meaning signifies anything intended to  mislead another.  It is a matter of intention and even if  promise held out by the accused was fulfilled by him, the  question is: whether he was acting in a bonafide manner?   

18.     The offence of abduction is a continuing offence.  This  Section was amended in 1992 by Act XLII of 1993 with effect  from 22.5.1993 and it was subsequently amended in 1995 by  Act XXIV of 1995 with effect from 26.5.1995.  The Section  provides punishment for kidnapping, abduction or detaining  for ransom.

19.     To attract the provisions of Section 364-A what is  required to be proved is (1) that the accused kidnapped or  abducted the person; and (2) kept him under detention after  such kidnapping and abduction; and (3) that the kidnapping  or abduction was for ransom.  

20.     To pay a ransom as per Black\022s Law Dictionary means  \023to pay price or demand for ransom\024.  The word \023demand\024  means \023to claim as one\022s due;\024 \023to require\024; \023to ask relief\024; \023to  summon\024; \023to call in Court\024; \023An imperative request preferred  by one person to another requiring the latter to do or yield  something or to abstain from some act;\024 \023An asking with  authority, claiming.\024  The definition as pointed out above  would show that the demand has to be communicated.  It is  an imperative request or a claim made.        21.     When the evidence on record is analysed in the  background of Section 364-A IPC, the inevitable conclusion is  that the prosecution has clearly established commission of the  said offence. Considering the alarming rise in kidnapping  young children for ransom, the legislature has in its wisdom  provided for stringent sentence. Therefore, the High Court  rightly refused to interfere in the matter. In our view, the  impugned judgment of the High Court does not suffer from  any infirmity to warrant interference.  The appeal fails and is  dismissed.