Siba Shanker Das, Orissa State., vs State Of Ap., Rep. Pp.,
2021 Latest Caselaw 2176 AP

                                       1




         THE HON'BLE SRI JUSTICE C. PRAVEEN KUMAR
                                     AND
         THE HON'BLE SRI JUSTICE B. KRISHNA MOHAN

                  Criminal Appeal No. 855 of 2014

JUDGMENT:       (Per Hon'ble Sri Justice C.Praveen Kumar)



         With the consent, Ms. Ammaji Nettem, Legal-Aid Counsel,

appearing for the Appellant and Sri. M. Dushyanth Reddy,

learned Additional Public Prosecutor, this Criminal Appeal is

heard through Blue Jeans video conferencing APP.


1)        Accused No. 4 in Sessions Case No. 25 of 2014 on the file

of   X    Additional   and     Sessions      Judge,         Visakhapatnam   at

Anakapalle, is the Appellant herein.


2)        Originally, a charge-sheet came to be filed against A-1 to

A-4, but, pending trial, the case against A-1 to A-3 was split up

and separated, as such, charges were framed against A-4 alone

for the offences punishable under Sections 364-A, 342 and 386

of Indian Penal Code, 1860 ['I.P.C.']. By its Judgment, dated

18.07.2014

, the learned Sessions Judge, convicted the appellant

[A4] herein and sentenced him to suffer imprisonment for life

and to pay fine of Rs.100/- for the offence punishable under

Section 364-A I.P.C. He was further directed to undergo rigorous

imprisonment for one year and to pay fine of Rs.100/- for the

offence punishable under Section 342 I.P.C. He was also

directed to under rigorous imprisonment for seven years and to

pay fine of Rs.100/- in default directed to undergo simple

imprisonment for a period of three months for the offence

punishable under Section 386 I.P.C. All the substantive

sentences were directed to run concurrently. The record also

shows that the appellant was arrested on 25.06.2013 and since

then he is in jail.

3) The substance of the charge against the accused is that,

on 12.06.2013 the appellant (A4) along with three others

kidnapped PW3 (Siyadri Santosh Rao), aged about 18 years,

from RTC Complex, Chodavaram, and confined him by putting

under fear of death till he was rescued by the police on a later

date. The charge also discloses demand of ransom of

Rs.10,00,000/- from PW2 for release of PW3.

4) The facts, as culled out, from the evidence of prosecution

witnesses are as under:

i) PW1 is the elder brother and PW2 is the mother of PW3.

After completing his 10th class, in the year 2013, PW3

appeared for polytechnic entrance examination and got a

seat in a polytechnic college at Paderu. In the month of

June, 2013, he went to Chodavaram along with his friend

(PW4) to download his allotment letter. After getting down

from the bus, PW4 went to his college, while PW3 sat by

the side of the bus stop at Chodavaram, as he was not

feeling well. At that time, an unknown person approached

him and enquired about his visit to Chodavaram. The said

person informed PW3 that he will provide a good job to

him. Believing his version, PW3 accompanied him to

Anakapalle Railway Station and then boarded a train. It is

the case of PW3 that as he was weak, he slept in the train

without taking any food. Thereafter, he was taken to a

room where both his hands were tied to the back side of

the chair and four persons present in the said room were

guarding him. Among the said four persons, the appellant

was one amongst them.

ii) It is said that A4 removed the rope tied to the hands of

PW3 and asked him to inform his parents about his

kidnap. It is also said that the persons present in the room

were armed with knives and sticks and they also kicked

PW3 on chest when he failed to meet or answer to their

demands. Later a purse was taken out from the pant

pocket of PW3, in which they noticed some telephone

numbers. A telephone call was made to the mother of PW3,

and he was asked to speak to her on phone. PW3 claims to

have informed his mother [PW2] about he being wrongfully

confined and also informed his mother that he is not aware

about the place where he is detained. At that point of time,

one of the alleged kidnapper took the phone, went outside

the room and talked with PW2. The other persons present

in the room tied PW3 with a rope and beat him. Later on,

out of four persons, two persons went outside while other

two persons remained in the room keeping a watch over

him. It is the case of PW3 that the two persons present in

the room removed his clothes and burnt him with cigarette

buds, causing burn injuries on his body, apart from

placing a knife on his chest with a threat to kill him. Later

on, the other two persons who went out came inside and

informed that PW2 agreed to pay the amount as demanded

by them and accordingly asked PW3 to cooperate with

them. It is to be noted here that PW3 does not specifically

speak about the role of the appellant.

iii) It is said that the alleged kidnappers applied ash over the

face of PW3 to cover his identity and detained him in the

room for two days. On the third day, PW3 was asked to be

ready, as his mother agreed to pay the amount and

accordingly the appellant and the kidnappers covering the

eyes of PW3, took him in a car to a distance. After reaching

some distance, they got down from the car, where PW3

noticed some sheds and an old dilapidated temple. At that

stage, a fifth person came there. It is said that out of five

persons present there, three went on a motorcycle, while

the other two kidnappers inclusive of A4 remained with

PW3. Later on, the three persons who left earlier, came

back, and one person dropped while other two asked PW3

to sit on their motorcycle. After covering some distance on

the motorcycle, the two kidnappers left PW3 at an

unknown place and went away being afraid of the

situation.

iv) It is the case of PW3 that as he was naked, he stayed

himself under a shed for some time. At which point of

time, one person came there. PW3 is said to have asked

him to give his cell phone to talk with his uncle, by name,

D. Sanyasi Rao [PW5]. PW3 informed his uncle [PW5]

about the incident, who advised him to abscond from the

place immediately. It is the case of PW3 that immediately

thereafter he started running towards forest area and after

covering some distance, noticed a hostel building and two

students coming out of the hostel. PW3 requested them to

give their cell phone to talk with his uncle. Accordingly,

they gave their cell phone and PW3 claims to have talked

with his uncle [PW5]. As per the advice of PW5, the two

students took PW3 to their hostel, provided clothes and

some water and, thereafter, took him to Kurda Road Police

Station. The students informed the police that PW3 was

kidnapped by some persons.

v) At this stage, it is also to be noted that a report about the

incident was lodged on 16.06.2013 by PW1 alleging

missing of his younger brother, which lead to registration

of a case in Crime No. 82 of 2013 of Chodavaram Police

Station, under the head "boy missing". It is also the

evidence of other witnesses that on 16.06.2013, the

kidnappers informed PW2 on phone about the demand of

Rs.10,00,000/- for release of PW3 and the amount to be

paid in Visakhapatnam at 4.00 P.M.

vi) It is the version of PW5 that pursuant to information given

by students, he along with the local Police went to Kurda

road Police Station and noticed PW3. There, they searched

for the kidnappers but in vain. On the third day of the

search, while they were at Railway Station in Bhuvenswar,

PW3 noticed A4 at the said place. Accordingly, the

Inspector of Police [PW7], apprehended A-4. It is the

version of PW7 that, PW3 identified one more person, by

name, Mirja Kunu Baig @ Kunal [A3], who was also

apprehended. Both the accused made confessional

statement in the presence of independent mediators, which

was reduced in to writing. Pursuant to the confession

made, the raid party went to Nayahut Village, and

observed the house where PW3 was detained. The police

examined one Razak Mirja and recorded his statement. A

bike bearing No. OR 02 BP 2282 and two cell phones were

recovered from A3 and A4. PW7 prepared a rough sketch of

scene, which is placed on record as Ex.P5, apart from

seizing M.O.1 to M.O.3 i.e., a motorcycle, and two cell

phones. He got arrested the other accused and after

completing the investigation, filed a charge-sheet which

was taken on file as P.R.C. No. 2 of 2014 [after split].

vii) On appearance of the accused, copies of documents as

required under Section 207 Cr.P.C., came to be furnished.

Since the case is triable by Court of Sessions, the matter

was committed to the Sessions Court under Section 209

Cr.P.C. Basing on the material available on record, charges

as referred to above came to be framed, read over and

explained to the accused, to which, he pleaded not guilty

and claimed to be tried.

viii) In support of its case, the prosecution examined PW1 to

PW7 witnesses and got marked Ex.P1 to Ex.P5, beside

marking MOs. 1 to 3. After completion of prosecution

evidence, the accused was examined under Section 313

Cr.P.C. with reference to the incriminating circumstances

appearing against him in the evidence of prosecution

witnesses, to which he denied but however no oral or

documentary evidence adduced.

ix) Relying upon the evidence of PW3, which gets

corroboration from the evidence of PW1, PW2 and PW5, the

learned Sessions Judge, convicted the accused.

Challenging the same, the present appeal came to be filed

through legal-aid.

5) Ms. Ammaji Nettem, learned Legal-Aid counsel appearing

for the appellant would contend that, there is absolutely no legal

evidence available on record to connect the accused with the

crime. According to her, there is an abnormal delay in giving the

report and no explanation is forthcoming for the delay in lodging

the report. It is further urged that there is absolutely no

evidence on record to show any telephone call being made by the

alleged kidnappers either to PW2 or to any of the prosecution

witnesses, since, no call data has been placed on record. In

other words, her argument appears to be that, when the cell

phones of A3 and A4 were seized by the police, they ought to

have made every effort to connect the accused with the crime by

collecting call data from the said phones. She further submits

that in the absence of any test identification parade,

identification of A4 by PW3 in the court has no value. According

to her, the case of PW3 gets falsified in the absence of any

medical certificate showing the injuries on the body of PW3,

when the case of the prosecution is to the affect that he was

beaten by the alleged kidnappers and burnt with cigarette buds.

In the absence of the same, it is pleaded that the entire case has

to be viewed with suspicion. It is further alleged that, even an

entire reading of the evidence of PW3, nowhere indicate that

PW3 was forcibly taken by the alleged kidnappers. On the other

hand, it shows that PW3 followed the person who promised to

provide him an employment. Her argument appears to be that

when PW3 on his own followed the alleged abductors; arrest of

the accused not being from a place where PW3 was detained and

in the absence of any evidence as to then place where he was

detained and more particularly when the prosecution failed to

examine the mediators, the ingredients constituting the offences

are not made out.

6) On the other hand, the learned Additional Public

Prosecutor opposed the same contending that when PW3 was

with the appellant and others for a period of three days, there

cannot be any difficulty in identifying the accused in the court,

since, it is not the case of the accused or the prosecution that

the accused were covering their faces with mask. According to

him, not holding of test identification parade is not fatal to the

prosecution case and the identification of the accused for the

first time in the court can be accepted in the fact situation. He

further submits that the evidence of PW3 can be relied upon to

base a conviction in the absence of any motive for him to foist a

false case. According to him, the motive set up by the accused is

inconsistent and the suggestion given to the witnesses vary from

witness to witness. According to him, if the evidence of PW3 is

believed, not collecting the call data may not matter much.

Learned Additional Public Prosecutor further submits that the

reason for PW3 foisting a false case, namely, that he did not pay

his fee of Rs.600/- for the polytechnic course and to avoid

harassment, he created a story implicating all the four accused

appears to be far fetched and the same cannot be accepted.

Hence, pleads that conviction and sentence imposed by the trial

court warrants no interference.

7) The point that arises for consideration is, whether the

prosecution was able to bring home the guilty of the accused

beyond doubt for the offences punishable under Section 364-A,

342 and 386 IPC?

8) Before proceeding further, it would be appropriate to refer

to Section 364-A I.P.C., which is as under:

''[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 2 [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.]"

9) To constitute an offence under Section 364-A I.P.C. it

must be shown that, kidnap or abduction must have been done

to extract ransom. The word 'ransom' is not defined in the law.

As observed by the Hon'ble Apex Court in Suman Sood alias

Kamal Jeet Kaur Vs. State of Rajasthan1, the term ransom is

a sum of money to be demanded to be paid for releasing a

captive, person or detenu. Kidnapped for ransom is an offence of

unlawful seizing a person and then confining the person, usually

in a secret place, while attempting to extort ransom. It is also

held that in addition to the abductor a person who acts as a go

between to collect the ransom is generally considered guilty of

the crime.

(2007) 5 SCC 634

10) The question now would be, whether the trial court was

right in convicting the appellant (A4) for the offence punishable

under Section 364A I.P.C., simpliciter apart from other two

offences?

11) As urged by the learned Additional Public Prosecutor, the

entire case now rests on the evidence of PW3, who was aged

about 17 years at the time of the offence. According to PW3, in

the month of June 2013, he went to Chodavaram along with

PW4 to download the letter of allotment. While PW4 left to his

college, he was sitting by the side of bus stop at Chodavaram as

he was not feeling well. At that time, an unknown person

approached him and enquired the purpose of his visit to

Chodavaram. Believing the promise made by the said person of

providing a job, PW3 accompanied him to Anakapalle Railway

Station and boarded a train. He slept in the train as he was

weak and later on he was taken to a room where he was made to

sit on a chair and both his hands were tied to the back of the

chair. At that point of time, four persons were present in the

said room and the appellant was one amongst them.

(ii) According to PW3, the accused untied the rope, but,

however, stood behind him with knifes and sticks in their

hands. They asked him to inform his parents over phone about

the kidnap for money and also asked him to inform his parents

to arrange the ransom. It is said that whenever PW3 failed to

answer certain questions, he was beaten. It is the version of

PW3 that the persons present in the room, picked up his purse

from his pocket wherein some telephone numbers were available

and after verifying the mobile number of his mother, a phone

call was made and PW3 was asked to inform his mother over

phone that he was wrongfully restrained in a room. When his

mother asked him the place where he was kept, he pleaded

ignorance about the said place. Thereafter, the kidnappers took

the telephone number, went outside the room and talked with

the mother of PW3 [who is examined as PW2].

(iii) It is the case of PW3 that two of the kidnappers went

away while the other two remained in the room and started ill-

treating him. Thereafter, the other two persons came inside the

room and informed PW2 agreed to give the amount as demanded

by them and asked PW3 to cooperate with them and inform over

phone to arrange the amount at an early time. Due to fear, he

agreed to the request made. Thereafter, i.e., after three days,

they took PW3 on a motorcycle by blindfolding him to a place

where there were some sheds and a dilapidated temple, where

they removed the cloth tied to his eyes. At that point of time, a

fifth person joined them. Three of them went out on a

motorcycle, whereas, the two kidnappers including the appellant

herein stayed with him and watched him. Later on, the said

three persons came back and one among them stayed back

while two persons went away. Later the accused took PW3 on a

motorcycle to some distance and due to fear, left PW3. As it was

raining, he took shelter in a shed and at that point of time, a

stranger came there. PW3 requested him to give his cell phone

for making a call to his uncle [PW5]. PW3 talked with his uncle,

who advised him to escape. Thereafter, he started running

towards the forest area. He noticed a hostel building and two

students coming out of the hostel. He again asked them to give

their cell phone to talk with his uncle. Later on, his uncle also

talked to the students, who on the advice of PW5 took PW3 to

the Kurda Road Police Station, from where information was

given about his presence in the Police Station.

12) From the evidence-in-chief of PW3, it is very clear that,

he on his own followed a stranger, who initially took him to

Anakapalle Railway Station, and then went to a different place in

a train. Thereafter, he was confined in a room. His evidence is

silent as to the time he travelled in the train and also about

getting down at a different railway station before reaching the

room where he was said to have been detained for three days.

Though he deposed that four persons were present in the room

but his evidence is silent as to which of the accused informed

him about his kidnap for ransom. His evidence also does not

disclose that the demand for ransom from his mother was made

in his presence. On the other hand, it shows that the two

persons who went out of the room, came back and informed that

the mother of PW3 agreed to pay Rs.10,00,000/- as ransom.

From the above, two things are clear. First, it was not the

appellant who demanded ransom either from PW3 or from the

mother of PW3. Though, PW3 in evidence-in-chief tried to say

that the kidnappers asked him to inform his parents over phone

about the act of kidnap and for arranging money, but, it is silent

as to who among the four demanded PW3 to do so. It is not the

version of PW3 that all four of them made such demand.

13) It is also to be noted here that, after dropping PW3 at a

place where there was a shed one person came towards PW3

while all others left. It is also strange to believe that the said

person would have offered a cell phone to PW3 to talk with his

uncle. In our view, the person present along with PW3 would not

have given his cell phone, nor would have allowed him to talk

with his uncle and then allow him to escape, if really it was for

ransom, more so when the payment was to be made at 4.00 P.M.

in Visakhapatnam.

14) At this stage, it would be appropriate to refer to the

evidence of PW2 [the mother of PW3] with whom the kidnappers

had a telephonic conversation with regard to ransom. In her

evidence, she deposed that, on 16.06.2013 at about 9.00 A.M.,

while she was in the train, received a call where the kidnappers

allowed her son to talk with her, but he did not give any details

about the place where he was detained by the kidnappers. It is

also her version that while talking with her son, the kidnappers

took the phone and talked with her and agreed to hand over her

son at Visakhapatnam at 4.00 P.M. It is her version that, she

continued to call the same number, but there was no response.

However, she reached Visakhapatnam by 4.00 P.M., on

17.06.2013.

15) It is to be noted here that, when PW2 talked with her son

[PW3] on 16.06.2013 at 9.00 A.M., her son did not inform her

about the ransom alleged to have been demanded. Though, PW3

in his evidence deposed about the kidnappers informing him

about the demand for ransom and asking him to make such

demand from his mother, but the evidence of PW2 is silent on

this aspect. In-fact, her evidence is to the effect that it was the

kidnappers who demanded money on 16.06.2013, which as per

the evidence of PW3 was not before him. Strangely, PW2 did not

give telephone numbers of the alleged kidnapers, though she

was in continuous touch with them. Her evidence is also silent

as to the telephone numbers from where she received the calls.

The evidence of the investigation officer is also silent with regard

to collecting information regarding the details of the numbers

from where PW2 received the calls, and the call data so as to

trace out the culprits. Though, PW2 deposed that she received a

ransom call from the alleged kidnappers, but the investigation

officer failed to collect the call data to find out the truth in her

statement. Even believing the evidence of PW2 and PW3 which

show there were some calls but there is no evidence on record to

show that it was A4 who made such call or that A4 was aware

that the two persons who went out, made calls demanding

ransom. In-fact, the evidence of PW3 is to the effect that, he was

asked to demand money from his mother on phone, but the

same is not supported by the evidence of PW2.

16) Further, to prove an offence under Section 364A I.P.C. it

is also necessary to establish that along with kidnapping, the

kidnapper also should threatened to cause death of the victim. A

reading of the said provision would show that for proving an

offence under Section 364 A IPC, fulfilment of the following

conditions are also essential:

"1) kidnapping or abduction of any person or keeping a person in detention after such kidnapping or abduction and (2) threatening to cause death or hurt to such person or by this conduct gives rise to a reasonable apprehension that such person may be put to death or hurt, or (3) causes hurt or death to such person in order to compel the Government or any foreign State or international inter-government organization or any other person to do or abstain from doing any act or to pay a ransom."

17) As held by the Apex Court in Shaik Ahmed v. State of

Telangana [judgment pronounced on 28.06.2021], after

establishing the first condition, one more condition has to be

fulfilled since after the first condition, the word used is "and".

Therefore, in addition to the first condition, the other condition 2

or 3 has to be proved failing which the conviction under Section

364A IPC cannot be sustained.

18) From the evidence adduced by the prosecution, which we

have referred to earlier, the version of PW.3 is that he was

threatened and his body was burnt with cigarette buds, but not

even a single injury was found on the injured/victim. In fact,

PW3 was not even sent for medical examination. There is

absolutely no evidence on record to show that he was beaten or

burnt with cigarette buds all over his body. Hence, the version of

PW.3 that some of the alleged kidnappers while detaining him in

a room threatened him, beat and burnt him with cigarette buds

cannot be accepted, at its face value in the absence of any

corroboration from other source i.e., medical evidence.

Therefore, on this score also the ingredient constituting the

offence under Section 364A IPC is not made out.

19) Hence, we are of the view that prosecution failed to

establish the guilt of the accused for an offence punishable

under Section 364-A I.P.C. However, fact remains that some

unknown person by deceitful means took PW3 to a different

place and confined him. Later on, for reasons best known, let

him loose.

20) For the aforesaid reasons, ingredients constituting

offences punishable under Section 364A and 386 I.P.C. are

made out.

21) The next question would be whether an offence under

Section 365 I.P.C., is made out?

22) Section 365 I.P.C., reads as under:

''Section 365 I.P.C. - Kidnapping or abducting with intent secretly and wrongfully to confine person. Whoever kidnaps or abducts any person with intent to cause that person to be secretly and wrongfully confined, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine''.

23) A perusal of the evidence of PW3 coupled with the

evidence of PW4 show that, both of them went to Chodavaram

and from there an unknown person is said to have taken away

PW3 promising to provide him with some employment. The fact

that he was abducted also gets corroborated from the evidence

of PW1, who lodged the report at the earliest point of time,

setting the law into motion. PW3 in his evidence also speaks

about being confined in a room for three days and thereafter due

to fear was let out after taking him to a different place. Hence,

we are of the view that the offence alleged squarely falls within

the ambit and purview of Section 365 I.P.C. Hence, while

maintaining the conviction of accused for the offence punishable

under Section 342 I.P.C., which is for wrongful confinement, the

conviction of the accused under Section 364A is altered to

Section 365 I.P.C.

24) Accordingly, the Criminal Appeal is partly allowed. The

conviction and sentence recorded against the appellant/accused

No.4 in S.C.No.25 of 2014 on the file of the X Additional and

Sessions Judge, Visakhapatnam at Anakapalle, for an offence

punishable under Section 364-A IPC is altered to one under

Section 365 I.P.C. For the altered conviction, the appellant (A4)

is sentenced to rigorous imprisonment for a period of seven

years. The period of remand undergone by him during

investigation, trial and after conviction shall be given set off,

under Section 428 Cr.P.C. Consequently, the appellant (A4) shall

be set at liberty forthwith on completion of seven years rigorous

imprisonment, if not required in connection with any other case.

The substantive sentence of rigorous imprisonment imposed

under both the counts shall run concurrently.

25) Consequently, miscellaneous petitions, if any, pending

shall stand closed.

_______________________________ JUSTICE C. PRAVEEN KUMAR

_______________________________ JUSTICE B. KRISHNA MOHAN

Date: 29/06/2021 S.M...

THE HON'BLE SRI JUSTICE C. PRAVEEN KUMAR AND THE HON'BLE SRI JUSTICE B. KRISHNA MOHAN

Criminal Appeal No. 855 of 2014 (Per Hon'ble Sri Justice C.Praveen Kumar)

Date: 29/06/2021

S.M.

26)