Vivek Rusia, J
This appeal filed under Section 374 of Criminal Procedure Code, 1973 (hereinafter referred to as 'Cr.P.C.') assails the judgment dated 30.04.2012 in S. T. No.357/2010 passed by Special Judge, SC/ST (Prevention of Atrocities) Act 1989, Dewas whereby the appellant has been found guilty for offence under Section 458, 392, read with Section 397, 364-A and 429 of IPC and sentenced to undergo R.I for 10 years with fine of Rs.1,000/- , R.I. For 10 years with fine of Rs.1,000/-, life imprisonment with fine of Rs.2,000/- and R.I. for three years respectively with default stipulation.
2. The prosecution story briefly stated is that complainant Smt. S.Parimala Srinivasan (PW-1) on 21.09.2010 lodged an FIR at Police Station Kotwali, Dewas stating that she is residing at Sadashiv Nagar and Principal in Central Academy. Her husband is Director in the Caparo Tube, Dewas. On the fateful day, she and her husband A. Srinivasan (PW-2) were sleeping in the room situated at upper floor of the house. When she woke up hearing barking of the dog, mugger armed with knife was standing by the side of their bed. That person asked for surrendering their money. When the pet dog pounced on mugger, he stabbed the dog to death. Armed mugger again threatened them to surrender their cash and jewellry and for that he forced her to open their Almirah. Gold chain of near about 10 grams, 3 rings one having embedded with diamond, second one embedded with pearl and third one with Moonga, all weighing near about 15 grams, ear rings of near about 6 grams, coin of silver having image of Laxmi, three mobile phones, one Samsung bearing SIM No.9826252787, two Nokia mobiles having SIM Nos.9826078725 and 9752091001 and ATM card of SBI was also snatched by that person. After that assailant thief also asked for laptop and on the point of knife that persons took her husband to the ground floor and asked for key of car of Honda City Silver Colour bearing registration No. MP-11-CC-0392. After that he forced to open the gate of the house and to start the car. When her husband said that he don't know to drive the car, that person forced her husband to sit in the car and forcibly took him away. She disclosed features/identity of the miscreant to police .
3. On this information, FIR was registered at Crime No.1135/2010 on 21.09.2010 and an investigation was set in motion. Spot map, damage Panchnama for damage of laptop were prepared. From the spot, two knives used for cutting vegetables, one napkin, one fibre sheet, three burned pieces of rubber, telephone wire, loose rubber pipe were also seized. Blood of the dog was raised with the aid of cotton. Postmortem of the dog was conducted. When the police chased the mugger, he nearby the ATM of SBI at Palda, left her husband with car and fled away. After that their Honda City car was seized. The accused was arrested and on his information, disclosure statement was prepared. The looted articles were seized from the appellant and Test Identification Parade of the appellant and the looted articles was conducted wherein looted articles and the appellant was duly identified. Blood stained cotton, plain cotton, blood-stained knife were seized and sent to FSL Gwalior through the Superintendent of Police, Dewas for examination. Call details of the complainant were taken. Statements of the complainant Smt. S.Parmila (PW-1) Srinivasan, A. Srinivasan (PW-2), Sabir Khan, Motilal Khatri (PW-4), Hemendra Singh Raghuwanshi (PW-3), Sachin Soni, Santosh Kumar Goud were also recorded under Section 161 of Cr.P.C.
4. On completion of usual investigation, charge sheet was filed against the appellant before the Court of competent Magistrate having local jurisdiction. Learned Magistrate after complying with the formalities stipulated under Section 207 of Cr.P.C. committed the case to the Court of Sessions. The learned trial Court framed charges for offence under Sections 458, 392 read with Sections 397, 364-A, 440 and 429 of IPC and read over to the appellant/accused who abjured the guilt and claim to be tried.
5. The prosecution in order to prove his case examined as many as 15 witnesses. Apart these documents Ex.P-1 to Ex.P-36 were also marked in evidence. The incriminating circumstances appearing against the appellant in the prosecution evidence were brought in the notice of the appellant when he was examined under Section 313 of Cr.P.C. Either he denied and or claimed innocence for most of the incriminating circumstances and submitted that he has been falsely implicated in the case. In defence he had examined Saida Bano (DW-1) and Mohsin (DW-2).
6. The learned trial Court on the basis of the evidence adduced before it vide the impugned judgment found the appellant guilty and sentenced him as mentioned hereinabove in first paragraph of the judgment.
7. The conviction and sentence has been challenged on the ground that case of the prosecution has not been proved beyond reasonable doubt. The learned trial Court has committed serious error in recording conviction against the appellant specifically for offence under S. 364-A IPC as ingredients of offence under Section 364-A were not proved hence conviction under S. 364-A of IPC is bad in law. It is further submitted that the learned trial Court overlooked the serious anomalies, omissions and contradictions present in the testimony of the prosecution witnesses specially in the testimony of Smt. S. Parmila Srinivasan (PW-1) and A. Srinivasan (PW-2). It has also been submitted that. The judgment of conviction and order of sentence has been passed without appreciating the evidence as per established principles, hence it is liable to be set aside. On these contentions learned counsel prayed for allowing the appeal and setting aside the impugned judgment of conviction and sentence recorded against the appellant.
8. Per contra, learned Government Advocate appearing on behalf of the State supporting the impugned judgment submits that the learned trial Court on due appreciation of evidence on record finding the same to be reliable has recorded conviction which is based on clear and cogent evidence. It is further submitted that prosecution has been able to establish complicity of the appellant which indicates towards his guilt therefore, it cannot be said that learned trial Court has recorded the finding of guilt without proper appreciation of evidence. Accordingly, it is submitted that the appeal being sans merit deserves to be dismissed.
9. We have bestowed our anxious consideration to the rival submissions raised at bar and have also carefully perused the record. The question for consideration is, whether the conviction and sentence recorded by the learned trial Court is not based on proper appreciation the evidence on record?
10. To appreciate the controversy with regard to the offence of kidnapping for ransom, as enshrined in Section 364-A of IPC it is apposite to be reproduce the same which runs 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 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.”
11. In the case of Shaik Ahmed Vs State of Telangana (2021) 9 SCC 59 the Apex Court in paragraphs 12, 13, 14, 15, 20, 23, and 27 has held as under:-
“12. We may now look into Section 364A to find out as to what ingredients the Section itself contemplate for the offence. When we paraphrase Section 364A following is deciphered:-
(i) “Whoever kidnaps or abducts any person or keeps a person in detention after such kidnapping or abduction”
(ii) “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,
(iii) or causes hurt or death to such person in order to compel the Government or any foreign State or international inter-governmental organisation or any other person to do or abstain from doing any act or to pay a ransom”
(iv) “shall be punishable with death, or imprisonment for life, and shall also be liable to fine.”
The first essential condition as incorporated in Section 364A is “whoever kidnaps or abducts any person or keeps a person in detention after such kidnapping or abduction”. The second condition begins with conjunction “and”. The second condition has also two parts, i.e., (a) threatens to cause death or hurt to such person or (b) by his conduct gives rise to a reasonable apprehension that such person may be put to death or hurt. Either part of above condition, if fulfilled, shall fulfill the second condition for offence. The third condition begins with the word “or”, i.e., or causes hurt or death to such person in order to compel the Government or any foreign State or international inter-governmental organisation or any other person to do or abstain from doing any act or to pay a ransom. Third condition begins with the word “or causes hurt or death to such person in order to compel the Government or any foreign state to do or abstain from doing any act or to pay a ransom”. Section 364A contains a heading “kidnapping for ransom, etc.” The kidnapping by a person to demand ransom is fully covered by Section 364A.
13. We have noticed that after the first condition the second condition is joined by conjunction “and”, thus, 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.
14. The use of conjunction “and” has its purpose and object. Section 364A uses the word “or” nine times and the whole section contains only one conjunction “and”, which joins the first and second condition. Thus, for covering an offence under Section 364A, apart from fulfillment of first condition, the second condition, i.e., “and threatens to cause death or hurt to such person” also needs to be proved in case the case is not covered by subsequent clauses joined by “or”.
15. The word “and” is used as conjunction. The use of word “or” is clearly distinctive. Both the words have been used for different purpose and object. Crawford on Interpretation of Law while dealing with the subject “disjunctive” and “conjunctive” words with regard to criminal statute made following statement:-
“…..The Court should be extremely reluctant in a criminal statute to substitute disjunctive words for cojunctive words, and vice versa, if such action adversely affects the accused.”
20. Thus, applying the above principle of interpretation on condition Nos. 1 & 2 of Section 364A which is added with conjunction “and”, we are of the view that condition No.2 has also to be fulfilled before ingredients of Section 364A are found to be established. Section 364A also indicates that in case the condition “and threatens to cause death or hurt to such person” is not proved, there are other classes which begins with word “or”, those conditions, if proved, the offence will be established. The second condition, thus, as noted above is divided in two parts- (a) and threatens to cause death or hurt to such person or (b) by his conduct gives rise to a reasonable apprehension that such person may be put to death or hurt.
23. The next judgment is Anil Vs. Admn. of Daman & Diu, (2006) 13 SCC 36. In the above case, this Court noticed the ingredients for commission of offence under Section 364 and 364A. Following was laid down in paragraph 55:-(SCC P.54)
“55. ….for obtaining a conviction for commission of an offence under Section 364-A thereof it is necessary to prove that not only such kidnapping or abetment has taken place but thereafter the accused threatened 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 organisation or any other person to do or abstain from doing any act or to pay a ransom.”
27. Now, we come to next judgment, i.e., Vishwanath Gupta Vs. State of Uttaranchal (2007) 11 SCC 633. In the above case, the victims were abducted from district of Lucknow, State of U.P. demands for ransom and threat was extended from another district, i.e., Nainital and the victim was done to death in another district, i.e., Unnao in the State of U.P. This Court had occasion to consider the ingredients of Section 364A and in paragraphs 8 and 9, the following was laid down:-
“8. According to Section 364-A, whoever kidnaps or abducts any person and keeps him in detention and threatens to cause death or hurt to such person and by his conduct gives rise to a reasonable apprehension that such person may be put to death or hurt, and claims a ransom and if death is caused then in that case the accused can be punished with death or imprisonment for life and also liable to pay fine.
9. The important ingredient of Section 364-A is the abduction or kidnapping, as the case may be. Thereafter, a threat to the kidnapped/abducted that if the demand for ransom is not met then the victim is likely to be put to death and in the event death is caused, the offence of Section 364-A is complete. There are three stages in this section, one is the kidnapping or abduction, second is threat of death coupled with the demand of money and lastly when the demand is not met, then causing death. If the three ingredients are available, that will constitute the offence under Section 364-A of the Penal Code. Any of the three ingredients can take place at one place or at different places. ...”
12. In the light of the aforesaid if we scrutinize the evidence on record with regard to Section 364-A of IPC, it is found that threat or hurt or death have not been given to the abducted A. Srinivasan (PW-2). In paragraph 8 of the cross examination, he has admitted that while taking him, the appellant has not used any pressure. He also cannot guess why he was taken away in the car. This witness admits that even in the car, no force or pressure was used against him. When the tyre of the car got punctured, the appellant asked him for arranging money, but appellant did not cause him any type of hurt. From the statement of Motilal Khatri (PW-4) also it cannot be inferred that it was the appellant who demanded for ransom amount.
13. Looking to the aforesaid, in the considered view of this Court, ingredients for attracting offence under Section 364-A of IPC are not fulfilled, therefore, conviction recorded by the learned trial Court under this offence cannot be sustained.
14. To prove charges of other offences viz. 458, 392 read with 397 and 429 of IPC, complainant S. Parimala (PW-1) and A. Srinivasan (PW-2), S.I.Abdul Jabbar (PW-5), Rajesh (PW-6), Dr. Rajesh Kumar (PW-7), Naib Tehsildar Satyendra Bairava (PW-8), Anil (PW-9), Sachin Soni (PW-10), Satish Kumar Gaud (PW-11), Saabir (PW-12), SHO of Police Station Kotwali Dewas (PW-14), finger print expert Gajraj Singh (PW-13) and Saidatt Bohre (PW-15) have been examined. From the statement of S. Parimala l(PW-1) and abducted complainant A. Srinivasan (PW-2) it is proved that incident of loot happened at their residence on 21.09.2010 at about 2:30 A.M. in the night. These witnesses have given vivid details of incident of mode of loot with the items looted. These witnesses have also proved that appellant at the point of knife looted their jwellery, ATM Card, mobile phones and also caused death of their dog, when it pounced on the appellant. All the looted items have been brought before the Court as different articles and properly proved. No material contradictions or omissions had appeared in the testimony of the above witnesses. Hemendra Singh (PW-3) has also supported the prosecution case and seizure of looted Honda City Car of the complainant, knife, telephone wire etc. by preparing a Panchnama vide Ex.P-6, Ex.P-7 and Ex.P-8 in this regard by the police. S.I. Abdul Jabbar (PW-5) who has investigated the case has proved arrest of the appellant and arranging test identification parade (TIP). Rajesh (PW-6) has also supported the seizure of looted items from the appellant, gold tops, mobile phones and other jwellery items by his testimony. Naib Tehsildar Satyendra Bairava (PW-8) who has arranged the TIP for identification of looted jwellery as well as identification of the accused has stated that the jewelry items and the appellant was duly identified by the complainant. Dr. Rajesh Kumar (PW-7) who has conducted the postmortem of the dead body of the dog has deposed that he found an incised wound on the stomach 1x2.5 inch caused by some pointed object. Damages to laptop of A. Srinivasan (PW-2) by appellant has also been proved.
15. From the perusal of the evidence on record, we are of the view that no factual or legal error has been committed by the trial Court in holding guilty the appellant under Sections 458, 392 read with 397 and 429 of IPC and accordingly imposing adequate sentence as mentioned in paragraph 1 of the judgment.
16. Resultantly, this appeal is partly allowed. The appellant is acquitted of the offence under Section 364-A of IPC, but conviction and sentence as recorded by the learned trial Court with regard to offences under Sections 458, 392 read with 397 and 429 of IPC are upheld.
The appeal is partly allowed to the extent indicated above.
17. As appellant has already served out jail sentence of more than 14 years, he be set free forthwith if not required in any other crime. Registry will prepare supersession warrant forthwith and send it to concerned jail authorities with copy of judgment of this court by fastest mode for compliance and necessary action at their end. Record of the court below with copy of the judgment be remitted back forthwith.
