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Judgment
Goverdhan Bardhar
In both the criminal appeals the accused appellants- Haluka and Ashok Kumar have challenged the Judgment of conviction and sentence dated
20.10.2014 passed by learned Addl. Sessions Judge No.1, Bayana (Bharatpur) in Sessions Cases No. 38/2014 (85/11) whereby the learned trial court
has convicted and sentenced both the accused appellants under section 364A IPC to life imprisonment and a fine of Rs.10,000/-, in default of payment
of fine the accused appellant was to further undergo simple imprisonment of one year; under section 120B IPC to life imprisonment and a fine of
Rs.10,000/-, in default of payment of fine the accused appellant was to further undergo simple imprisonment of one year and under section 386 IPC to
ten years rigorous imprisonment and a fine of Rs.10,000/-, in default of payment of fine the accused appellant was to further undergo simple
imprisonment of one year. Sentences were directed to run concurrently.
Prosecution story in brief is that Hakim Singh (PW8) s/o Shri Nathi Ram r/o Village Harinagar, Tehsil Roopbas, District Bharatpur (Rajasthan)
submitted a written report (Ex.P5) on 18.02.2011 to SHO, Police Station, Roopbas (Bharatpur) to the effect that his son Puneet was kidnapped for
ransom and for release of his son, he paid Rs.5 lacs but till date he is receiving threatening from the offenders. Informant narrated in the written report
that on 8.11.2010 at about 10:00 A.M. his son Puneet and daughter Sapna along-with other students namely; Umesh s/o Bhagwan Singh, Vishvendra
s/o Ramesh of his village went in school for study in Daulatgarh Village. Near the Village, two unknown persons came on red colour passion motor-
cycle and enquired from them about Hakim’s son Puneet. Puneet disclosed his identity. Then these unknown persons took Puneet along-with by
telling that he is being called by his father for some urgent work. Puneet sat on the bike in middle. These persons turned the motorcycle towards the
village and told first to get petrol filled in the motorcycle from the petrol pump. When these persons left the petrol pump behind, Puneet asked that
petrol pump has been crossed, as to where he is being taken. Upon this, the person who was sitting behind opened revolver and threatened Puneet not
to make hue and cry otherwise he would be killed. Due to fear Puneet remained silent. Afterwards, he was taken to the forest after covering his eyes.
The informant narrated that his daughter Sapna, who studies in Class VIII told about the incident to her Teacher Mukesh, who made a telephonic call
and informed about the incident to him. Then complainant came to know about kidnapping of his son Puneet. He immediately dialled to the Police
Control Room at No.100 but no response was given by the Control Room. After four hours at about 2:30 P.M. he received a telephonic call of
somebody from Mobile No. 8058706691 on his Mobile No.9982872658 and a demand of Rs. 5 lacs was made by someone. The caller told that the
arrangement of amount be made by next day otherwise his son would be killed. The complainant sought time to make arrangement of the amount on
the ground of his weak economic condition. When several calls were made, on 10.11.2010 the victim family agreed to pay Rs. 5 lacs ransom amount.
The kidnappers called along-with money to Kheria Mod at Bayana. The kidnappers told that only one person should come. Upon which his brother
Rambabu alone went to the place of accused by the route told by the callers where the victim Puneet was detained. Two persons were already
waiting there. After making enquiry as to the amount brought by his brother Rambabu, two of the accused received the amount and after receiving the
amount they released his son Puneet and handed over to his brother. The complainant further narrated that on 2.12.2010 at about 2:30 P.M. the
kidnappers threatened from Mobile No. 9610773213 not to lodge any FIR against them of the incident. But again he was threatened from Mobile No.
9610773213 not to lodge an FIR. For this reason and under the fear of life threatenings, he could not report the matter but due to continuous threats
from the offenders, this report is being submitted. Therefore, strict action be taken against the offenders. On the basis of aforesaid written report, an
FIR No.66/2011 (Ex.P6) was registered at Police Station, Roopbas, District Bharatpur, for the offences under sections 364A, 486 and 120B IPC.
After completion of investigation, the police submitted charge-sheet against the accused persons. After taking cognizance in the matter by the learned
trial court against the accused persons, the case was committed to the Court of Sessions Judge, Bharatpur, from where the case was transferred to
the learned trial court. The learned trial court thereafter framed the charge against accused persons under sections 120B, 364A and 386 IPC, who
denied the charges and claimed to be tried. The prosecution in support of its case recorded the statements of fifteen witnesses and thirty one
documents were exhibited. Thereafter, the accused appellants were examined under section 313 Cr.P.C. In defence, the accused appellant did not
produce any evidence. The learned trial court after considering the evidence led during the course of trial convicted and sentenced the accused
appellants for the charges levelled against him vide impugned judgment dated 20.12.2014. The accused appellants aggrieved and dissatisfied with the
impugned judgment of conviction and sentence have preferred instant criminal appeals.
Mr. Anil Jain, learned counsel for the accused appellant- Haluka in criminal appeal No.1063/2014, argued that all the prosecution witnesses are
interested witnesses, the FIR has been lodged after a great inordinate delay of more than three months, the FIR was lodged after arresting the
accused persons, before conducting the test identification parade, the police has shown the accused appellant to the prosecution witnesses in the police
station and kept his photo with them, in the report the name and physical description of the accused appellant has not been mentioned, test
identification is faulty as in the test identification parade no person of similar shape was gathered and stood..
Mr. Dinesh Kumar Garg, learned counsel for the accused appellant Ashok Kumar in Criminal Appeal No. 61/2015 argued that there is no iota of
evidence to connect the accused appellant with the crime, the statements recorded before the police under section 161 Cr.P.C and the statements
recorded before the Court, they are contradictory to each other, the FIR was lodged after a great inordinate delay of more than three months.
Learned Public Prosecutor appearing for the State opposed the appeals and supported the impugned Judgment of conviction passed by the learned
trial court. Learned Public Prosecutor argued that the learned trial court vide its judgment dated 20.10.2014 while convicting the present accused
appellants, acquitted co-accused Sarnam, Malkhan and Narendra Singh and against the impugned judgment of acquittal, the State of Rajasthan
preferred criminal leave to appeals challenging the impugned Judgment of acquittal. This Court vide vide Judgment dated 14.02.2018 dismissed the
criminal leave to appeals on the ground that “Sapna (PW4) sister of the abducted boy has stated that was Sarnam and Malkhan, who had abducted
Puneet on motor-cycle, but Puneet (PW5) himself in the Court has named accused Haluka and Ashok as those, who abducted him on the motorcycle.
Ex.P3 is test identification parade of Haluka and Ex.P4 is test identification parade of Ashok and both these accused persons were subjected to
identification parade by Rambabu and Puneet, who both have correctly identified them. Therefore, the learned trial court rightly convicted the accused
appellants Haluka and Ashok.†The appeal filed by the accused appellants Haluka and Ashok deserves to be dismissed.
We have considered the submissions made by learned counsel for the appellants and learned Public Prosecutor and carefully scanned the material on
record, exhibits and the deposition of witnesses.
In the present case, for the charge for the offence under section 364-A of the Indian Penal Code, the prosecution must prove the following
ingredients:
(1) the accused must have kidnapped, abducted or detained any person;
(2) He must have kept such person under custody or detention; and
(3) Kidnapping, abduction or detention must have been for ransom. To pay a ransom, in the ordinary sense to pay the price on demand for ransom.
This would show that the demand has to be communicated.
The prosecution case is based on the testimony of eye witnesses and victim witness Puneet (PW5), who at the time of alleged incident was around 13
years of age.
Puneet (PW-5) in his statement deposed that on 8.11.2010 at about 10:00 A.M. he along-with his sister Sapna (PW4), his sister’s friend Pooja, his
friends Umesh (PW2) and Vishvendra (PW1) were going from their village to study at Daulatgarh School. As they reached near Daulatgarh village,
behind them one motor-cycle of red colour came, on which two persons were sitting. Both the persons came near to them and asked about
Hakim’s son Puneet. He (PW5) told them that he is Puneet. His sister was following 2-4 steps behind him. B oth the persons told him that he is
being called by his father at home for some urgent work. This witness told them that he just left his father at home. Afterwards these persons told him
that there is some urgent work. Upon this, he sat on the motorcycle in the middle of both the persons. These persons turned the motorcycle towards
his village. These persons after proceeded at some distance told Puneet to get the petrol filled in the motorcycle from the petrol pump and thereafter
they would go to his village. This witness deposed that when these persons crossed the petrol pump then he asked from them that where are they
taking him. Then the person who was sitting on the last opened the revolver upon him and gave threatening that if he would make hue and cry, they
would kill him. Due to this reason he sat silently on the motorcycle. Afterwards these persons took him from Gahnoli Mod to Roopbas. After a gap of
around two hours, they stopped the motor-cycle and removed the cloth from his eyes. This witness further deposed that from there these persons took
him on foot near the hill. At that place except these two persons, two other persons were also present, who already caught hold of two other children.
This witness further deposed that near the hill, there were two ‘poonj of kadwa’. These persons around 2:00 P.M. made a telephonic call to his
father and told that his son is in their custody, so for release come in the morning at Bayana with Rs.5 lac in cash. These persons during the time of
conversation opened the speaker of mobile. His father requested them that he is not having such huge amount with him. Upon that these persons told
his father that if arrangement of such amount is not made they would commit murder of his son. His father requested not to kill as he would be making
arrangement of such amount. Puneet (PW5) in his statement further deposed that on 11.11.2010 his uncle reached at the place of offenders and gave
money to the offenders. Thereafter he was released from their custody and handed over to his uncle Rambabu (PW7). On seeing accused Haluka
and Ashok in the Court, (PW5) identified and stated that both thse took him on motorcycle to rock area in forest.
Vishvendra (PW1), Umesh (PW2), Sapna (PW4) are the eye witnesses of the incident. These witnesses in their testimony deposed that on 8.11.2010
at about 10:00 A.M. they along-with Puneet (PW5) were going from their village to study at Daulatgarh School. As they reached near Daulatgarh
village, behind them one motor-cycle of red colour came, on which two persons were sitting. Both the persons came near to them and asked about
Puneet, who is son of Hakim Singh. Upon such Puneet (PW5) told them that he is such fellow. These witnesses further deposed that Sapna (PW4),
sister of Puneet (PW5) was also following at 2-4 steps. These witnesses deposed that afterwards both the persons told Puneet (PW5) that he is being
called by his father at home for some urgent work, upon that Puneet told them that he had just left his father at home. Then these persons told Puneet
that there is some urgent work. Upon this Puneet set on the bike. These witnesses further deposed that after sitting Puneet on the bike in their middle,
both the persons took him with them towards the village of Puneet.
Hakim Singh (PW8), father of victim reiterated the averments made in the written report (Ex.P5) on the basis of which FIR (Ex.P6) was registered.
This witness narrated that his son Puneet (PW5) along-with his daughter Sapna (PW4) was going to school. The informant further told that the school
teacher Mukesh Kumar (PW6) told him that two persons came on motor-cycle and took the victim after telling him that his father was calling him at
home. On receiving information, he (informant) immediately dialed Police Control Room on Helpline No.100. Thereafter, a demand ransom of Rs.5
lacs was made by someone on phone without disclosing his name for release of the boy. When several calls were made, he agreed to pay Rs. 5 lacs
according to his economic condition. The caller told that only one person should come with money. Thereafter, he (PW8) sent his brother Rambabu
(PW7) along-with money. Rambabu (PW8) has corroborated the fact that Sapna (PW4) narrated him all the incident of kidnapping. Thus, the
testimony of Sapna (PW4) is natural as she explained in what manner accused kidnapped the victim.
Mukesh Kumar (PW6) deposed that from 11.08.2007 to 2.07.2012 he was posted as Sr. Teacher in Government Secondary School, Daulatgarh. He
knows Puneet, who was a student of Class VI. This witness deposed that on 8.11.2010 in the morning prayer assembly Sapna (PW4) was present.
He was Class Teacher of Class VIII. Around 11:00 A.M. Sapna (PW19) came to him and requested him to make telephonic call to her father. Upon
that he made a call to her father Hakim Singh (PW8). Sapna (PW4) asked from her father Hakim Singh (PW8) whether Puneet (PW5) had been
called at home by him. When her father told that he has not called Puneet, Sapna (PW4) became nervous. This witness deposed that thereafter he
made enquiry from Sapna (PW4) about all the incident and narrated the entire incident to Hakim Singh father of the victim Puneet.
Arjun Singh (PW3) is a witness of seizure and recovery memo (Ex.P1) of Rs. 5,000/- at the instance of accused Narendra Singh.
Ajay Kumar (PW13) deposed that on 09.02.2011 he was posted as S.H.O., Badi. On that day in FIR No.95/2011 registered for the offences under
sections 364A and 365 IPC, he arrested accused Haluka and on the basis of information given by accused Haluka under section 27 of the Indian
Evidence Act, recovery of one Passion Motorcycle was made. During the course of interrogation, accused Haluka stated that in the alleged incident
accused Ashok Jatav r/o Kharagpura and Narendra Jatav r/o Harinagar were involved. Ramavatar Singh (PW14) deposed that on 18.02.2011 he was
posted as SHO, Police Station Roopwas. He investigated into the matter and on the basis of material made available to him during the course of
investigation, he submitted charge-sheet against the accused persons.
Naveen Meena (PW15) deposed that on 14.03.2011 he was posted as Judicial Magistrate, Bayana. On that day he received an application (Ex.P20)
from Police Station Roopwas in case No.66/2011 for conducting identification parade of accused Haluka and Ashok Kumar from witnesses Rambabu
and Puneet (victim). This witness deposed that witnesses Rambabu and Puneet rightly identified accused Ashok but Puneet did not identify accused
Sarnam and Malkhan.
On perusal of statement of Victim Puneet (PW5) it is crystal clear that accused appellants Haluka and Ashok abducted Puneet (PW5) on the motor-
cycle. Ex.P3 is test identification parade of Haluka and Ex.P4 is test identification parade of Ashok and both these accused persons were subjected to
identification parade by Rambabu and Puneet, and both correctly identified them. The statement of victim Puneet (PW5) is corroborated by the other
prosecution witnesses who had opportunity to see the offenders.
Hakim Singh (PW8) has given all the details as to how money was taken to the place where his son was detained and after receiving the ransom he
was released and handed over to Rambabu (PW7). The learned trial court has discussed at length the prosecution evidence. Testimony of Rambabu
(PW7) is natural as he explained in what manner he reached Bayana to the place where victim was detained and after release handed over to him.
Rambabu (PW7) had enough time to see the accused Haluka and Ashok Kumar who took money from him where the victim was released.
On scrutinizing the entire evidence on record, the statement of each of the witnesses, namely; Rambabu (PW7), uncle of victim, Hakim Singh (PW8),
father of victim, Mukesh Kumar (PW6), school teacher and Puneet (PW5) victim, the fact that Puneet (PW5) was kidnapped for demand of ransom
made by the kidnappers. Rambabu (PW7) who had opportunity to see the accused went to the place of accused for release of Puneet (PW5) from
their custody. He has narrated that after the demand of ransom was made, it was agreed to pay Rs. 5 lacs and sought time to make the arrangement
of money. He further told that on receiving call at 3-4 P.M., he asked the caller as to how he could reach their place from Bayana. On which the
caller told about the way. This witness further stated in his evidence about the role of the accused. The witness has given all the details as to how
money had been taken to the place where victim was released and handed over to him. Rambabu (PW7) in his testimony has specifically deposed that
he can identify the offenders who were present at the spot. He deposed that offenders are Ashok and Haluka. This witness is most important witness
of the case who had opportunity to see most of the accused. Upon facts and circumstances of the present case, the Court identification itself is a good
identification.
Puneet (PW5) in his statement deposed that on 11.11.2010 his uncle gave money to the offenders.
Thereafter they released him from their custody and handed over to his uncle Rambabu (PW7). On seeing accused Haluka and Ashok in the Court,
he identified them and stated that both took him on motorcycle to rock area in forest. Thus, the victim had actually seen the accused. In the attending
circumstances and corroborative evidence, the Court identification itself is a good identification.
In the case at hand, Rambabul (PW7) had opportunity to see all accused including the present appellants as he went to the place of detention for
release of the victim. Mere identification of an accused in a test identification parade is only a circumstance corroborative of the identification of the
accused in court. Therefore, upon facts and circumstances in the present case, accused persons were shown before test identification parade is not
fatal for the purpose of analysis of the prosecution evidence.
The Hon’ble Apex Court in Motilal Yadav Vs. State of Bihar, (2015) 2 Supreme Court Cases 647 in para Nos. 11,12 and 13 has held ad-infra:-
“11. The evidence as to the identity of a person is admissible under Section 9 of the Indian Evidence Act, 1872. In Ravi Kumar v. State of
Rajasthan, this Court has opined in paragraph 35 as follows: (SCC p.305)
35.... The court identification itself is a good identification in the eye of the law. It is not always necessary that it must be preceded by the test
identification parade. It will always depend upon the facts and circumstances of a given case. In one case, it may not even be necessary to hold the
test identification parade while in the other, it may be essential to do so. Thus, no straitjacket formula can be stated in this regard.
In the case of R. Shaji v. State of Kerala, regarding the evidential value of the test identification parade, this Court has stated in paragraph 58 as
under: (SCC p.287)
58.... The identification parade is conducted by the police. The actual evidence regarding identification is that which is given by the witness in court.
A test identification parade cannot be claimed by an accused as a matter of right. Mere identification of an accused in a test identification parade is
only a circumstance corroborative of the identification of the accused in court. ....
In Ashok Debbarma alias Achak Debbarma v. State of Tripura, this Court has made following observations in para 20 which are reproduced
below: (SCC pp.758-59)
“20..... The primary object of the test identification parade is to enable the witnesses to identify the persons involved in the commission of
offence(s) if the offenders are not personally known to the witnesses. The whole object behind the test identification parade is really to find whether
or not the suspect is the real offender. In Kanta Prasad v. Delhi Admn.[9], this Court stated that the failure to hold the test identification parade does
not make the evidence of identification at the trial inadmissible. ....
In view of the above observations, we find that the prosecution has proved that the accused appellants have committed the offence of kidnapping, for
ransom by adducing cogent and reliable evidence, beyond all reasonable doubts.
In the result, both the criminal appeals filed by the accused appellants are bereft of merit and accordingly stand dismissed. The Judgment of conviction
and sentence dated 20.10.2014 passed by learned Addl. Sessions Judge No.1, Bayana (Bharatpur) in Sessions Cases No. 38/2014 (85/11) is
confirmed.