Hon'ble Gautam Chowdhary,J.
1. Present appeal has been preferred against the Judgment and order dated 4.4.2014 passed by learned Additional Sessions Judge, Room No. 16, Kanpur Nagar in S.T. No. 177 of 2010, State Vs. Akeela @ Sanno @ Aneeta & another, arising out of Case Crime No. 212 of 2009 under Section 364A I.P.C. Police Station Bekanganj, District Kanpur Nagar.
2. The facts as culled out from the prosecution story are that on 20.10.2009, the first informant Misbahul Islam gave a written report at Police Station Bekanganj, District Kanpur Nagar alleging that on 19.10.2009 at about 6 p.m., his housemaid, namely, Sanno @ Akeela took his niece Shifa aged about one and half year around the house and did not return. It is further alleged that she could not traced out even after lot of efforts.
3. On the basis of written report, a case was registered as Case Crime No. 212 of 2009 under Section 364 I.P.C. against the accused-appellant Akeela @ Sanno on the very same day at 10.00 p.m. S.I. Ram Charan Gihar took up the investigation of the matter. The Investigating Officer prepared nakal chik, nakal rapat and also recorded the statement of scribe of the First Information Report. On the pointing out of first informant, he also prepared the site plan of the place of occurrence and started tracing out the kidnapped girl.
4. On 22.10.2013, wife of the first informant Smt. Tahsin Fatima presented a written report with an intent that on 20.10.2009 on her mobile phone no.9450436353, a call was made from mobile phone no.9753775687 and the person who rang her told that kidnapped girl was in his custody and for giving her back alive, ransom amounting to Rs.5 lakhs was asked for. The said application was entered in the G.D. and Section 364 was converted into Section 364-A I.P.C. and investigation was taken up by S.O. S.K. Singh.
5. On receiving information from some informant on 22.10.2013, when Investigating Officer along with police party proceeded on foot towards Yatimkhana crossroads and were 50 paces away from the crossroads, the informant pointing out towards a person standing near the crossroads told that he was the person who was husband of Akeela @ Sanno. The police, at the spur of moment, nabbed that person on the Yatimkhana crossroads itself, who told that his name was Vijay Sharma (accused-appellant no.2) and admitted that on his instigation, his wife Sanno had kidnapped the girl for ransom of Rs. 5 lakhs and his wife was sitting in China Park behind Community Centre hiding herself. The Investigating Officer nabbed her from the said place from whose custody the kidnapped girl was recovered. He prepared the recovery fard of the girl on the said place and took signatures of public witnesses as well as the police personnel present thereon. He also took signatures of the accused person on the copy of the fard. After investigation, charge-sheet was submitted before the court.
6. The Chief Metropolitan Magistrate, Kanpur Nagar taking cognizance of the offence, committed the matter to Sessions Court for trial. The Trial Court charged the accused-appellants under Section 364A I.P.C. who denied the charges and claimed trial.
7. To bring home the charges, the prosecution examined as many as eight witnesses, namely, P.W.1 Misbahul Islam (first informant and uncle of the kidnapped girl); P.W.2 Mohd. Sibtain (father of the informant); P.W.3 Sharbat Mufiz (independent witness of recovery of kidnapped girl); P.W. 4 Tahseen Fatima (wife of the informant); P.W. 5 Head Constable Devendra Kumar ; P.W. 6 SI Sunil Kumar Singh ; P.W. 7 S.I. Ramcharan Gihar; and P.W. 8 Rajendra Singh Nagar (witness of recovery of kidnapped girl).
8. P.W. 1 Misbahul Islam in his examination-in-chief stated that Sanno @ Akeela and her husband Vijay were known to him. Sanno used to do maid work at his home. It was on 19.10.2009 at about 6 p.m. when Sanno @ Akeela took out his niece Shifa aged about one and half year out of the house on the pretext of walking around. When she did not returne for a long time, he and his family members started tracing her out. They searched for them in the night. On not finding them, he had moved an application on 20.10.2009 at about 10 a.m. at Police Station Bekan Ganj. He along with others was searching Shifa and Akeela on the very day. At about 12.30 at day hours, on mobile no.9450436353 of his wife Tahsin Fatma, a call was made from mobile no. 9753775687 and it was told that his child is safe and if she wanted her back, she had to extend ransom of Rs.5 lakhs and if it was disclosed to anybody, her child will be no more. This witness further stated that on account of threat, he did not told this to the police and was waiting for his call as it was said that he will make another call as to where the money had to be given. On not being made call for two days, his wife gave a written information in this regard at the police station. On 20.10.2009 at about 10.10.30 at night, the police nabbed Sanno @ Akeela and Vijay near Yatimkhana crossroads and recovered his niece Shifa from their custody. At that time, police had called up his father and brother. On the very same day, the police had handed over Shifa to his father and brother. Accused Sanno @ Akeela and her husband had kidnapped his niece Shifa aged about one and half years for getting ransom.
9. P.W.1 in his cross-examination stated that he had written the written report. May be that in haste, he could not put date on the written report. Mobile No. 9415051970 was his number. Mobile No.941512805 belongs to his father Mohd. Sibtain. Mobile No. 9935959933 belongs to his younger brother Mistahul Islam who is the father of the girl. Mobile No. 2542042 belongs to doctor, which was closed at that time and out of order on that day. He had written the written report standing on the road outside the police station. It was written on 20th at about 10 a.m. in the morning. Akeela @ Sanno had come for work in his house about two months ago. She had come two months ago from the date of incident. Akeela did not live in his house. He did not know where Akeela used to live. Mother of Sanno used to visit his house earlier to the incident. Her visit was upto three years ago. Mother of Akeela used to visit his house upto three years ago from the date of incident. Mother of Sanno lived at Colonelganj. He had never visited her house. Mother of Sanno used to come to work at the time of marriage etc. Sanno used to take around the girl outside and then he stated that she had took her around for about two to four times. There was a boy child except that girl, who was aged about four years old and boy child was seven years old. She had taken him around about one time. He did not remember specifically as to what remuneration he used to give her but he used to give less than thousand rupees. Neither he had given any application on 19.10.2009 nor he remembered about that. That girl could not be found. He had seen the girl at home. He had given statements to the Inspector. He had got recorded his statements between dates 20th-22nd. He further stated that it was false statement that he had lodged false case due to not giving of salary. Call was made on the cell phone of his wife. What was told, should be asked from his wife. Mobile number of his wife was 9450436353 and which number was used at that time, he did not remember. He had checked the number but he did not remember the number at that time. He had not got made audio CD. Nothing occurred in his presence. In his presence, police visited his home, they did paper work but what they did, he did not know. The girl was healthy when she was at home. Girl was weeping.
10. P.W. 2 Mohd. Sibtain stated in his examination-in-chief that he knew Akeela @ Sanno. She was housemaid in his house. On 19.10.09 in the evening hours, Akeela took his granddaughter Shikha aged about one and half years out of the house on the pretext of play. On not being returned, he along with others started search for them. On not being traced out, his son Misbahul Islam got registered a case of kidnapping against her at Police Station Bekanganj. On 20.10.2009, his daughter-in-law (bahu) was asked for ransom of Rs.5 lakhs on making call on her cell phone. Thereafter, they were waiting for another call and making arrangement for demanded ransom. When no call was made again, his daughter-in-law Tahsin Fatima having apprehension of any untoward incident gave a written report at police station Bekanganj about the call for demand of ransom. On 22.10.2009 at night, one police personnel came to call up him and told that a lady had been nabbed with one and half year girl to whom he should recognize. Thereafter, he went to China Park and saw that his girl was in the lap of lady police and Akeela was nabbed by police. He recognized his girl there and the lady caught hold was Akeela @ Sanno. This witness proved handing over document Ext. Ka-2 and recovery fard Ext. Ka-3.
11. P.W. 2 in his cross-examination stated that he knew Akeela from 10-15 days ago of the incident. He did not know another accused who is known by Vijay Sharma. Where Akeela lived, he did not know. Akeela was engaged for work at 800 rupees per month. He did not go to the police station for lodging case. Report was lodged on 20.10.2009. His son had lodged the report against Akeela for kidnapping. He had not seen her taking the girl around. Mother and grandmother of the girl had seen her taking girl around. Voice asking for Rs.5 lakhs was of a man. The number from which call was made on the mobile of his daughter-in-law was given at the police station. He came to know about finding out of the girl on 22.10.2009. One policeman came and gave the information. The girl was found at Tikonia Park in Heeramanpurwa. When he reached there, Parvez, Arlad, Sharbar and policemen were there. Except the lady and girl, there was none other else. Husband of that lady was also there. He did not know the actual time. Darkness had grown in the revving. This witness further stated that police had not recorded his statement. Tahsin Fatma was his daughter-in-law. His statement was not recorded thereafter. The girl was one and half years old and was not able to tell anything. It was wrong to state that his girl was not kidnapped and case was wrongly registered. This was also wrong to state that he had given false statement. He further stated that it is wrong to state that he lodged case against her as her money was outstanding with them. He further stated that it is wrong to state that he registered false case on account of some personal acrimony.
12. P.W. 3 Sharbat Mufiz is the independent witness of the recovery of the girl. This witness proved Exts. Ka-3 and Ka-2. He stated in the cross-examination that he knew first informant, who was his brother-in-law (sala). From his home, Talaq Mahal was about 10 kms away. Yatimkhana was nearby Talaq Mahal. Yatimkhana is at walking distance of 2-3 minutes from Talaq Mahal. In his knowledge, the incident relates to 19.10.2009. He did not know when the case was registered. His wife came to know about the incident and thereafter he came to know about the incident from her. He did not know accused earlier. On 21-22.10.2009 no phone came to him about ransom. He was his son-in-law. Call was made to elder sister-in-law (badi bahu). Neither any call was made to him nor any ransom was asked from him. He had reached Yatimkhana crossroads at 10.10.30. For what he was going there, he did not know. He was not going to his in-laws home. This witness further stated that he was made to stop at the crossroads and then stated he stopped seeing crowd. He went to China Park with the police. Eight-ten policemen were catching hold of one man. From police, he came to know that it was a matter of kidnapping. Thereafter, he went along with the nabbed man and police to the China Park. This witness stated that there was darkness under the tree in China Park. In torch light, he saw that a lady with girl was sitting there. Policemen got that lady caught hold by lady home guard. He did not know that lady. Along with him, there was 8-10 policemen and Parvez. This witness stated that it was wrong to state that as he was son-in-law (damad) of the informant's family, therefore, he was making false statement.
13. P.W. 4 Smt. Tahsin Fatma in her examination-in-chief stated the fact of taking around the girl by her housemaid Sanno @ Akeela on 19.10.2019 and not coming back thereafter. On not being traced out, her husband Misbahul had lodged a report at police station Bekanganj. On 20.10.2009 at 12.30 p.m., a call was made on her mobile number 9450436353 by mobile no. 9753775687 and ransom of Rs.5 lakhs was demanded. When the call was not made again, she moved an application in regard to demand of ransom, which she proved as Ext. Ka-4. She further stated that on 22.10.2009 at night hours, police had nabbed Akeela and recovered Shifa. Her father-in-law had brought girl from the police station. In cross-examination, this witness stated that on 22nd her father-in-law had brought the girl at 12.00 a.m. From where he had brought she did not know. She did not ask her father-in-law as to wherefrom, he had brought the girl. Call was made by husband of Sanno on 20th at 12.30 noon. She did not remember the number from which call was made. In examination-in-chief, which number she had got written, was brought by her in writing and from that number call was made. She did not know from where her niece was recovered and from whom she was recovered. She did not remember whether she had told the Inspector the number from which call was made. She stated that the girl was neither kidnapped or recovered before her. She further stated it was wrong to say that false case was registered because of money being outstanding.
14. The prosecution proved written report F.I.R. as Ext. Ka-1; fard handing over of kidnapped girl as Ext. Ka-2; fard recovery of kidnapped girl as Ext. Ka-3; written report of Tahsin Fatima as Ext. Ka-4; Chik F.I.R. as Ext. Ka-5, Copy of G.D. Entry as Ext. Ka-6; Copy of G.D. Entry regarding registration of case as Ext. Ka-7; Charge-sheet as Ext. Ka-8; and site plan of the place of occurrence as Ext. Ka-9.
15. Learned Trial Judge after hearing the prosecution as well as defence counsel and appreciating the evidence, held both the accused-appellant guilty under Section 364 A I.P.C. and sentenced them to undergo life imprisonment with fine of Rs.2500/- each and in default of payment of fine, sentenced each of them to undergo two months additional imprisonment.
16. Heard Ms. Mary Puncha (Sheeb Jose), learned counsel for the appellants and Sri Roopak Chaubey, learned counsel for the State.
17. Learned counsel for the appellant contended that in fact the evidence is so scanty that there was no proof that minor child was kidnapped. She further stated that leave apart kidnapping, there is no evidence that the kidnapping was for ransom. Conviction of the accused cannot be based on the sole testimony of the accused himself who had guided the police to the place where child was kept. It is further submitted that husband is a blind person. The husband and wife were working with the first informant. It is further submitted that from the record, it is not found that the accused had demanded what can be said to be ransom. The telephone number from which call was made is also not proved. The kidnapper were nabbed from China Park. The learned Trial Judge, according to the learned counsel, has based the Judgment on the fact that Sanno @ Akeela @ Aneeta at the instance of Vijay Sharma under the guise of taking the child around had kidnapped her and had demanded ransom. It is submitted that this fact is not proved by cogent evidence. Hence, placing reliance on Judgments of this Court in Guddo @ Nitin Singh Vs. State of U.P., 2020 CRI.L.J. 3792, and Kallu @ Gurdayal Vs. State of U.P., 2020 CRI. L. J. 1547, learned counsel for the appellants submitted that conviction and sentence of the accused appellants may be modified from Section 364 A to one Section 365 I.P.C..
18. Per contra, learned counsel for the State submitted that the accused were in fiduciary capacity and were servants with the first informant. Ransom has been demanded, which has been proved and this Court may not easily interfere with the Jugement impugned herein as there was arrest even at the behest of the accused Vijay Sharma. They were knowing the first informant and the child. It was submitted that P.W. 3 has given exact version of entire fact which is corroborated by statements of P.W. 7 S.I. Ram Charan.
19. Considering the evidence on record, we are convinced that the matter would fall within Section 365 and not within 364 A of the Indian Penal Code. The decision of the Division Bench of this Court in Guddo @ Nitin Singh (supra) relied on by Mary Puncha (Sheeb Jose), learned counsel for the appellants would apply to the facts of the case. Factum of asking ransom from a particular phone number has not been proved. Even if we go by the admission of the accused, which is a weak piece of evidence that there was kidnapping because of the threat given , it would be offence under Section 365 and not 364A of the Indian Penal Code. Sections 365 and 364 A read as under:-
"365. 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."
"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."
20. In view of the aforesaid, we modify the conviction of the appellants under Section 364-A I.P.C. to one for offence punishable under Sections 365 I.P.C. Maximum punishment for such offence is seven years only. Hence, we modify the sentence from life imprisonment to seven years (already in jail). Fine is reduced to Rs.1,000/- and default sentence is reduced to six months which would start after completion of seven years. The accused shall be entitled to remission as per law.
21. As the accused are in jail for more than ten years, we direct them to be released forthwith in case they are not required in any other case.
22. Appeal stands partly allowed.
23. Lower court record be sent to the court below forthwith.
24. Let a copy of this Judgment be sent to the Jail Authorities concerned and District Magistrate for compliance.
Order Date :- 8th February 2021 Ram Murti